Vol. 736 Wednesday No. 286 21 March 2012

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions Work Capability Assessment: Cancer Treatments Health and Social Care Bill: HIV/AIDS Programmes Criminal Records Bureau Drought London Local Authorities Bill [HL] Commons Amendments Scotland Bill Committee (5th Day)

Grand Committee Immigration and Nationality (Fees) Regulations 2012 Schedule 5 to the Anti-terrorism, Crime and Security Act 2001 (Modification) Order 2012 Localism Act 2011 (Consequential Amendments) Order 2012 Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012 Considered in Grand Committee

Written Statements Written Answers For column numbers see back page

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Lord German: My Lords, the Government have had House of Lords just nine or 10 days since the consultation ended to bring a response. However, does my noble friend agree Wednesday, 21 March 2012. that the state and the benefit system have to perform the important job of supporting people who have 3pm suffered or are suffering from cancer and ensure that not only the method of treatment but also the condition Prayers—read by the Lord Bishop of Birmingham. of each individual is looked at? We must treat every person as an individual and not take a tick-box approach to their problems. Work Capability Assessment: Cancer Treatments Lord De Mauley: My noble friend makes an extremely Question good point.

3.06 pm Baroness Gardner of Parkes: My Lords, what is the Asked By Baroness Morgan of Drefelin position with people undergoing chemotherapy? In many cases, if they are on a monthly cycle, the first To ask Her Majesty’s Government what changes week will be absolutely intolerable; then they will be are planned to the work capability assessment following fine for two weeks; then it will be absolutely ordinary their informal consultation on accounting for the living in the next week; and then they will start the effects of cancer treatments. cycle again. Is that treated as a total continuing period for a work capability assessment, or will they be expected to do something in the one week when they Baroness Morgan of Drefelin: I beg leave to ask the are better off? Question standing on the Order Paper in my name, and in so doing I declare an interest as chief executive of a research cancer charity. Lord De Mauley: My noble friend makes a valid point. Of course she is right: they will be treated as being under treatment. Lord De Mauley: My Lords, our informal consultation on accounting for the effects of cancer treatment in the work capability assessment closed on 9 March. We Lord McKenzie of Luton: My Lords, can the Minister received almost 90 responses to the consultation. We give us an update on the success rate of appeals are currently analysing these responses and will in due against WCA determinations? course publish a consultation response which will outline our proposals. Until we have done so, it would Lord De Mauley: Yes, my Lords. The rate of successful be inappropriate to comment on any changes to the appeals remains at about 40 per cent. We recognise the work capability assessment. importance of getting decisions right the first time, and we are committed to improving the decision-making Baroness Morgan of Drefelin: My Lords, can the process as part of the drive to ensure that the work Minister inform the House what action the Government capability assessment is as fair and effective as possible. are taking to ensure that the intended introduction next month of the contributory ESA time limit will not impact adversely on those cancer patients who are Health and Social Care Bill: HIV/AIDS currently claiming contributory ESA? Programmes Question Lord De Mauley: Before I do so, my Lords, I would like to place on record our thanks to the noble Baroness 3.10 pm and Breast Cancer Campaign for the valuable work that they do in this field. We are committed to supporting Asked By Baroness Thornton cancer sufferers in the most appropriate way through To ask Her Majesty’s Government what assessment the welfare system. As evidence of that commitment, a they have made of the risks posed by implementation year ago we extended the support group to include of the Health and Social Care Bill to HIV/AIDS both those awaiting and those between courses of programmes. treatment. As a result, 68 per cent of employment support allowance claimants whose primary condition is cancer are placed in the support group and will be Baroness Northover: My Lords, HIV services are, unaffected by time-limiting. We of course recognise and will continue to be, comprehensive. They include that some individuals will be affected. This is a highly surveillance and national and local prevention, treatment sensitive area and we must get our proposals right. and care. The NHS Commissioning Board will lead That is why, as I explained, we undertook a consultation, on commissioning treatment and care services. This are analysing the responses we received and will publish recognises that HIV treatment is specialised and that a response soon. We will then fully assess the implications prevalence varies. Local authorities will commission of those proposals, with a view to implementing such HIV prevention services in line with their wider remit changes as are necessary as quickly as possible. regarding sexual health and health inequalities. 911 Health and Social Care Bill: HIV/AIDS[LORDS] Health and Social Care Bill: HIV/AIDS 912

Baroness Thornton: I thank the Minister for that public health. There are incentives within that for Answer, which confirms that HIV treatment and care them to try to improve the health of their populations. will be commissioned by the national Commissioning Local authorities are best placed to understand the Board, that some preventive work will be conducted public health pressures, which are not just in this area, by local authorities and that national HIV prevention on their local populations. will be commissioned by Public Health England. However, On prevention and treatment, the emphasis in recent it is unclear who will commission post-exposure years—under the previous Government, as under ours— prophylaxis following sexual exposure, PEPSE, which has been on the high-risk groups, particularly gay men is vital specialist work to halt the spread of HIV. Who and people from the sub-Saharan region. Those are will commission that work, and how do the Government the groups at greatest risk. However, a sexual health intend to ensure that all the services will not be diminished policy document is being worked on at the moment. If by being commissioned by at least three different it is felt that it is important to feed into it that there is a bodies or lost when those bodies begin their work? need for nationwide emphasis on this matter, now is the time to emphasise it. Baroness Northover: I assure the noble Baroness that the current high level of care and commissioning will continue. The reason the Commissioning Board is Baroness Masham of Ilton: My Lords, will the Minister taking responsibility nationally is that this is a costly assure the House that there will not be fragmentation disease to treat and its prevalence is varied around the in regard to this very complicated condition? Will country, so it makes sense if the board has overall there be NICE guidelines? The drugs for HIV are very responsibility for that. As the noble Baroness knows, complex and there is a fear that there might be resistance. public health has moved to the local authorities, which is why it is appropriate for prevention to be placed at Baroness Northover: As with every other area, this that level. With regard to joining up care, as she will kept under close review to make sure that things knows, the health and well-being boards locally will are suitably joined up and that we have high-quality do a great deal to ensure that they look at the needs of prevention and treatment. As for NICE guidelines, the the population in that locality and that care is delivered British HIV Association produced clinical guidelines appropriately in their local area. for HIV treatment in 1999. They were taken forward and are widely accepted by clinicians and commissioners. Lord Fowler: My Lords, in preventing the spread of The association is currently revising its guidelines and HIV,does my noble friend agree that the most important we will see what it suggests. step taken in the process of the health Bill was the Government’s decision that free HIV treatment should be made available for everyone in this country? When I Baroness Barker: My Lords, do the Government withdrew my amendment, it was on the understanding still support the work of the UK National Screening that the Government would introduce their own statutory Committee and, if so, how will its recommendations instrument. When will that happen, and when does my be implemented in future? noble friend expect the new system to be in operation? Baroness Northover: Yes, indeed, the UK National Baroness Northover: I thank my noble friend Lord Screening Committee will remain as an independent Fowler for all that he has done in this area, not least advisory body and will continue to advise the Government on this particular change, which we were very happy and the NHS on all aspects of screening. The NHS to announce we would be taking forward. The important constitution, which was drawn up by the previous thing here is the protection of our population. The Government, commits the Government to providing House of Lords Select Committee had rightly flagged screening programmes as recommended by the UK that if some overseas visitors who were not currently National Screening Committee. The NHS Commissioning covered were left in that situation, there would be an Board will commission national screening programmes increased risk to our population. I am extremely glad on the Secretary of State’s behalf. to say that we have extended treatment to cover that group so that we can look after our population. We are on course for the timetable that we laid out before, Lord Tomlinson: Will the noble Baroness explain and this should be introduced in the autumn. how what she said about frameworks in the early part of her rather lengthy answer to my noble friend Lady Baroness McIntosh of Hudnall: My Lords, what McIntosh differs from having targets in the National incentives does the Minister think there will be for local Health Service? authorities, once they have public health responsibilities, to invest properly in the prevention of HIV/AIDS Baroness Northover: I have been allocated much when the treatment costs will not fall to them? Can she more time for this Question than my colleague was for confirm that currently a very much smaller proportion the previous one, so I apologise if I am taking too long of funds is spent on prevention compared with the to answer. The noble Lord will have to wait to see how enormous cost of treatment? It would be in everyone’s that transpires. interests if that balance were addressed somewhat. Baroness Northover: The local authorities will Lord Walton of Detchant: My Lords, does the noble commission the prevention and testing services. They Baroness agree that one of the difficult problems in have a public health outcomes framework that they need the area of prevention is the fact that it is not ethically to address to drive up the situation across the board in possible to take a blood sample to test an individual 913 Health and Social Care Bill: HIV/AIDS[21 MARCH 2012] Criminal Records Bureau 914 for HIV without their informed consent? The problem The Minister of State, Home Office (Lord Henley): that arises is that a number of people who are at risk My Lords, the Criminal Records Bureau has issued refuse to give consent, even though they continue to more than 31 million certificates since its launch in have sexual contact, and that is very difficult to overcome. March 2002 and has received more than £868 million in fees. The bureau does not hold any information to Baroness Northover: The noble Lord is absolutely determine what portion of this cost has been paid by right. From my other area of international development, applicants, employers or other bodies. I know only too well that that is true world wide. Things have improved enormously in the United Kingdom, where people with HIV are now living normal lives Lord Vinson: I thank the Minister for his very and there is much less discrimination than there used considered reply. Trust is the glue that holds society to be. That helps in encouraging people to come together. Is he aware that many organisations find that forward for testing. However, the noble Lord is absolutely this staggering level of CRB checks is overdone, is right and it is extremely important that we reduce the disproportionate to the risk and is putting off good stigma so that they are content to do so. volunteers? As aggressive paedophilia is rare, and unlikely in the presence of others, will he reissue the Lord Roberts of Llandudno: My Lords, as health is sensible Home Office guidance on this matter and so devolved to Scotland, Northern Ireland and Wales, help re-engender trust and good neighbourliness? how does the United Kingdom national screening project include them? Is there any particular mechanism Lord Henley: My Lords, my noble friend is right to or understanding there? draw attention to the importance of trust. He is also right to draw attention to the very high number of Baroness Northover: Public Health England will be certificates that have been issued. This is a matter that liaising with the different parts of the United Kingdom we have been addressing in the course of the Protection to ensure that what is learnt in one area is propagated of Freedoms Bill. I refer my noble friend to the impact to others so that the different parts of the United Kingdom assessment of last year on that Bill, which estimated can learn from each other. We look to what happens in that there would be a reduction of some 50 per cent in England, Scotland and Wales. That came up frequently the number of such certificates being issued, dropping in the Bill and will continue to be the case. from about 3.7 million a year to something like 1.7 million. I think that is a step in the right direction. Baroness Thornton: My Lords, perhaps I may come back to the noble Baroness as she completely failed to answer one of my questions, which was about PEPSE. Baroness Deech: Will the Minister be good enough Who will commission the vital work which halts the to give the House his opinion of the effect that the spread of HIV? following scenario will have on the outreach work carried out by this House? I invite a small group of Baroness Northover: I was accused of answering at A-level students to visit this House, as I have done too great a length. The Commissioning Board will before, to sit in the Chamber, to have tea and to take a oversee commissioning. It is working out how that can small tour, and the teacher writes asking me please to best be delivered and whether various things should be confirm that I have had a CRB check. commissioned at the local level. If the noble Baroness would like to feed into that process, that would be very welcome. Lord Henley: Obviously, the noble Baroness is a most tremendous risk to the public and to children The Earl of Listowel: My Lords, this may be slightly and I hope that she will consider these matters very wide of the Question, but can the noble Baroness say carefully. No—that is what we want to address and it what progress has been made in reducing maternal is the point of some of the changes we are making as a transfer of HIV in this country, and how that compares result of the Protection of Freedoms Bill. It is why we with the progress made on that issue in sub-Saharan will keep these matters under review and it is why my Africa? That may be very wide of the Question and right honourable friend the Home Secretary launched she may like to write to me. her initial review into these matters last year. I go back to the supplementary question of my noble friend Baroness Northover: I am very happy to write to the Lord Vinson when he talked about trust being important. noble Earl, but the information I have suggests to me We think it is vital that people take a common-sense that it has been declining. approach in these matters.

Criminal Records Bureau Baroness Walmsley: When and in what way will the Question Government be communicating to the ISA and the police the statement that my noble friend made last 3.21 pm week during the passage of the Protection of Freedoms Bill in response to the amendment tabled by the noble Asked By Lord Vinson Lord, Lord Bichard: that the ISA can pass on to the To ask Her Majesty’s Government how many police the information that has led to a discretionary checks have been conducted by the Criminal Records bar so that the police can then use their discretion to Bureau since it was established, and at what total release that information to a conscientious employer cost to applicants. who requests it? 915 Criminal Records Bureau[LORDS] Drought 916

Lord Henley: My Lords, the Bill has not completed the language and learn a bit. These exchanges have its passage and it will obviously have to come back to virtually disappeared for the same reason that we have this House after consideration of Lords amendments been hearing—checks have to be done on the families in another place. After completion, when we have had with whom the children will be staying. Does the our last chance to discuss these matters, we will issue Minister agree that this is yet another system that is that guidance. over the top? Surely, the schools themselves can do checks on children’s parents. Lord Harris of Haringey: Further to that question, the noble Baroness suggested that it would be discretionary Lord Henley: My right honourable friend brought for the ISA to pass such information to the police. I in the review exactly because of those concerns—damage had understood the Minister to say that his intention to exchange visits, volunteering and the like. That is was for that information to be passed to the police why she conducted her review last year and is why we automatically, so that they could use their discretion. made changes during the course of the Protection of Does he agree that having two sets of discretion in this Freedoms Bill. area is likely to lead to individual cases falling through the net, which could be very damaging to the children who might subsequently be abused? Lord Marlesford: My Lords, will the Minister try to ensure that the Criminal Records Bureau focuses on areas of real priority? For example, does the bureau Lord Henley: My Lords, I do not have the precise hold records of people’s passports, including foreign words that I used on that occasion, but the noble Lord passports? After all, if you want to stop someone on is probably right to imply that we were offering discretion the watch list leaving or entering the country, it is quite to the police. useful to know what passports they hold, including foreign ones. The Earl of Erroll: What percentage of these certificates would reveal either a criminal record or information Lord Henley: My Lords, without notice, I am not that would bar these people from working? sure that I can answer my noble friend’s question about passports, but I shall certainly offer to write to Lord Henley: My Lords, I cannot answer that question, him in due course. but I can say that in the 10 years in which this system has been running some 130,000 potentially unsuitable people have been prevented from working with children Drought and vulnerable adults. The noble Earl can use that Question figure against the figure of 31 million and work out his own percentage. 3.29 pm Lord Hunt of Kings Heath: My Lords, can the noble Asked by Lord Knight of Weymouth Lord confirm that it is the Government’s view that in general the establishment of CRB checks and the To ask Her Majesty’s Government what action system that came from it was essential to ensure that they are taking to protect communities, food producers vulnerable people are protected? Having said that, and and habitats from the threat of drought in England. coming back to the question of the noble Baroness, Lady Deech, does he agree that part of the problem is The Parliamentary Under-Secretary of State, Department overzealous interpretation by a number of organisations? for Environment, Food and Rural Affairs (Lord Taylor Perhaps the Government’s best efforts should be put of Holbeach): My Lords, droughts happen in the natural into working with those organisations on guidance, order of things, and the Government’s reaction to the information and education, so as their decisions on current dry spell is being planned for in detail with the the number of people who need CRB checks might be EnvironmentAgencyandwatercompanies.TheGovernment more proportionate. recognised the risks early on and, since May 2011, the Secretary of State has held three drought summits to Lord Henley: My Lords, I accept that it was necessary agree actions to manage the impact of drought. Water to bring in the CRB and these checks, but things had companies are working closely together to conserve become out of proportion. That is why my right public water supply, and government and key sectors honourable friend announced her review and is why are meeting regularly. we want to scale things back to allow people to take proper responsibility for these matters. That is what Lord Knight of Weymouth: I thank the Minister for we are trying to do, and it was what we were trying to that reply. The effects of drought are now too apparent do in the Protection of Freedoms Bill, but we will in some parts of the country. For example, the River obviously keep these matters under review. If we can Kennet has in part dried up already. Does that not further scale down the checks without putting children reinforce the urgency of taking forward the Government’s or vulnerable adults at risk, we will do so. proposals on water abstraction? The contents of the Queen’s Speech have been even more pre-briefed than Lord Flight: My Lords, when I was at school, it was today’s Budget. Why has Defra failed to land a slot for quite common for people to have school exchanges a water Bill that would mean that we could get on with and stay with a family in France or Germany, pick up urgent action on water supply? 917 Drought[21 MARCH 2012] London Local Authorities Bill [HL] 918

Lord Taylor of Holbeach: My Lords, it is not for me Lord Stoddart of Swindon: Will the Minister ensure to anticipate the contents of the Queen’s Speech, and that water companies do not close existing storage certainly not to use the opportunity of this Question capacity for developing housing and other things? In to do so. Noble Lords will know that next week we will particular, will he get in touch with Thames Water, consider a water Bill that deals with time-sensitive which is closing storage capacity in Reading? matters and which I hope will have the concurrence of the House. The noble Lord will have to wait to see Lord Taylor of Holbeach: I do not know the details whether the water White Paper is translated into legislation of the particular case to which the noble Lord refers, in the Queen’s Speech when it occurs. but it is certainly useful to be advised of that. Thames Water is not in as acute a situation as some of the Lord Hamilton of Epsom: My Lords, will my noble other water companies. Indeed, it is helping out water friend comment on reports in the press recently about companies in Essex by transferring water from its area the proposal for a main line to be run alongside the to Essex. This co-operation between water companies high-speed link connecting to Birmingham and beyond, is a very good strategy, and one which the Government which would bring water down from the north-west to are anxious to encourage. the drought-stricken regions of the south-east? Lord Plumb: My Lords, may I confirm what the Lord Taylor of Holbeach: My noble friend anticipates Minister has just said? I was a member of Denis Howell’s a Question on the Order Paper about a national grid committee, and I confirm that it rained the moment for water. Of course, all those matters have been we met and did not stop for weeks. One hopes that if considered by this and other Governments. It has been we can form a committee again, the same sort of thing found that the interconnectivity of water systems is will apply. I congratulate the Government on recognising far more cost-effective than building a mainline grid. the importance of water, its usage and its conservation. Water is extremely energy-expensive to pump around. It is more crucial than people in this country perhaps Unfortunately, it does not naturally flow from the realise. However, would the Minister agree that in the north of England to the south-east. interest of food security, irrigation is essential? It is going to be a major problem in many areas. I realise that the Environment Agency has the responsibility Lord West of Spithead: My Lords, on that point, for maintaining the main arterial rivers. Many of these has much work been done on the use of operational have been neglected in recent times, which is a matter and non-operational canals to assist in that transfer? of importance that needs to be considered. However, restricting water for irrigation for certain food crops Lord Taylor of Holbeach: Yes, it has, and to a would be catastrophic and would result in crop failure. limited extent they can be used in the interconnectivity projects between water companies. The companies are Lord Taylor of Holbeach: It is very good to have my sharing a great deal and have invested considerable noble friend volunteering yet again to deal with this amounts. There has been a recent investment in the matter on behalf of us all. There are considerable north-west of England to relieve a drought there by concerns in agriculture, particularly about establishing pumping water from Wales. crops. However, farmers are used to dealing with the weather. They are by nature adaptable creatures. They Lord Naseby: Is my noble friend aware that in 1976, are changing cropping programmes in some parts of when a severe drought affected eastern England, the country, and they will change them in others. It is comprehensive work was done even on reversing the far too early to say what impact this may have on the flow of rivers. Could he usefully dust down those files food supply. All I can say is that the NFU and the and look at all the work that was done in that period? Environment Agency are involved in the weekly bird table meetings that are held on this subject, and that is Lord Taylor of Holbeach: I can assure my noble an extremely effective mechanism for getting the flexibility friend that these things are constantly under review. I that we need to deal with this problem. do not know that any particular major projects will alleviate this drought period, but it is important that London Local Authorities Bill [HL] we make the most of the natural links that we have Commons Amendments and the best use of the water that is available to us. 3.37 pm Lord Tomlinson: Will the Minister reflect that if he is going to brush down the files from 1976, to accompany them he must remember that not only did we have a Motion Labour Government but we had Denis Howell? What Moved by The Chairman of Committees plans does he have to resurrect the spirit of Denis Howell? That the House do agree with the Commons in their Amendments 1 to 154. Lord Taylor of Holbeach: How can noble Lords be assumed to have forgotten? I seem to remember that The Chairman of Committees (Lord Brabazon of Tara): when Denis Howell was appointed Minister for Drought, My Lords, I do not intend to move these amendments it did not stop raining. individually as many of them deal with rather minor 919 London Local Authorities Bill [HL][LORDS] Scotland Bill 920

[LORD BRABAZON OF TARA] Lord Forsyth of Drumlean: My Lords, I thank my matters. There are, however, a number of amendments noble friend Lord Wallace of Tankerness for the Written to the Bill which it may be helpful to draw to the Statement and for circulating the copy of the letter House’s attention. from the Secretary of State. However, without being First, the Select Committee in another place deleted churlish, I should like to complain in the strongest in its entirety the provision that would have required possible terms about the way in which this legislation food hygiene information to be displayed in food is being handled. We agreed to defer the consideration premises. Secondly, the Select Committee also removed of those parts of the Bill which relate to referendum the provisions relating to the management of houses amendments until after the consultation process had in multiple occupation, and provisions containing powers been completed. Your Lordships will recall that we of entry into such houses. Thirdly, provisions relating were considering the Bill in Committee when, out of to entertainment involving nudity were removed from the blue, came the consultation paper, to which responses the Bill at the request of the promoters following were required by 9 March. Therefore, we agreed to a change in national legislation. The promoters also agreed consider the Bill so that we would be able to debate the on Report to remove from the Bill a new offence of issues arising from the referendum on independence obstruction of an authorised officer. with the knowledge of what had happened during the consultation process. As a result of that, the Bill, The remainder of the amendments are either minor although it has been before Parliament for well over a or consequential on the changes that I have mentioned. year, is being considered right at the end of the Session, I hope that the House will agree to the amendments so we also agreed that the normal period between made in another place. I beg to move. Committee stage and Report stage would be truncated. Motion agreed. This afternoon, we are now faced with a two-page letter from the Secretary of State, which tells us very little about the consultation paper but tells us, as my noble friend has just said, that, Scotland Bill “tomorrow’s debate in the House of Lords”— Committee (5th Day) that is today’s debate— Relevant documents: 17th Report from the Delegated “is as well informed as possible, with the need to provide Parliament Powers Committee, 17th Report from the Constitution with a full and detailed analysis of the consultation in due Committee. course”. When I was a Minister, “in due course” meant six months. We shall have to consider the Report stage of 3.38 pm this Bill on Monday and Wednesday and, therefore, the only opportunity that we have to table amendments Moved by Lord Wallace of Tankerness which relate to the first parts of the Bill is tomorrow. That the House do now resolve itself into There is absolutely no time for us to take account of Committee. the consultation. I very much hope that my noble friend will impress on his colleague, the Secretary of State for Scotland, that it really is unacceptable that The Advocate-General for Scotland (Lord Wallace we should go into Report stage on Monday without a of Tankerness): My Lords, in moving this Motion, it full analysis and full information relating to the may be helpful if I indicate that my right honourable consultation process and an indication of where the friend the Secretary of State for Scotland tabled a Government stand on this. To add a little zest to that, Written Ministerial Statement which has been made perhaps I may give notice that, in the absence of that available in the Printed Paper Office since this morning. undertaking, I will table a Motion for Monday to He has also written to the Shadow Secretary of State provide for that. for Scotland, Mrs Margaret Curran MP, and circulated I turn to my second point which relates to something that letter to other party spokesmen in the House of that is quite unacceptable. I am not being critical here Commons in which he gives an indication of the of my noble friend as I know he is the messenger in consultation. He concludes his letter by saying: this respect—I should have said my noble and learned “In making this information available now, I am seeking to friend; indeed, I may have played some small part in balance the need to ensure that tomorrow’s debate in the House that, but that is another story—and I realise that he is of Lords is as well informed as possible, with the need to provide taking the Bill through the House with great courtesy Parliament with a full and detailed analysis of the consultation in and skill. However, in earlier consideration of these due course”. matters, when we raised the issue of legislative consent I should perhaps have said that the Written Ministerial and whether the Scottish Parliament was giving legislative Statement reflected agreement reached between the United consent, we were not informed of what we are now Kingdom Government and the Scottish Government informed of: that the Government have done a deal on the basis of which the Scottish Government with the Scottish Government, that the concessions will be tabling a legislative consent Motion in the made are very extensive, and that they relate to this Scottish Parliament. Obviously, we shall bring forward Bill. Again, we are being told that amendments will be amendments to reflect that agreement. They will certainly tabled by the Government. Presumably, these amendments be subject to debate, and possibly votes, and we will will be tabled tomorrow and, therefore, there will little commend them to the House when we meet on Report opportunity for us to consider them. However, I have next week. I beg to move. taken the measure of placing a new amendment on the 921 Scotland Bill[21 MARCH 2012] Scotland Bill 922

Marshalled List for today which will give us an possibility of Scotland seceding from the rest of the opportunity to discuss at least some of the issues set United Kingdom, and that is something that the noble out in the Written Ministerial Statement to which my and learned Lord, Lord Wallace, has had to deal with. noble and learned friend referred. He has also had to deal with a very difficult negotiating In short, this is a major constitutional Bill which body in the Scottish Executive, and its leader in particular. has huge implications for people in Scotland and huge Driving a bargain with it is not easy. implications for people in the rest of the United Kingdom. We should consider that earlier this week—and I The way in which the parliamentary process has been hope I am not giving any secrets away—we may not handled has limited our opportunity. I have to say to have had even this letter and the Statement today if it my noble and learned friend that his right honourable had not been for the intervention of the noble and friend has treated this House with a degree of contempt. learned Lord, Lord Wallace of Tankerness. Admittedly, He knew that we were delaying these proceedings to he was under pressure from the Opposition—both the deal with the consultation process, and to give us such Front and Back Benches—and no doubt from the a cursory analysis of the consultation, at the very last noble Lord, Lord Forsyth, as well, but it is to his credit minute, at 11 o’clock on the day, makes it impossible that he got us the Statement. Otherwise we would for us to have a fully informed debate. Therefore, I am really have been dealing with it in the dark. not going to spend any time this afternoon discussing the referendum issues. I shall leave that until Monday. Lord Forsyth of Drumlean: I am most grateful to Furthermore, I was told at lunchtime today that on the noble Lord. I have no complaint about the noble Monday there is to be new business which will be and learned Lord, Lord Wallace, but I do not know tabled to be discussed before the Scotland Bill, so once what the noble Lord thinks he has. He has a letter again our time for consideration of the Bill is being from the Secretary of State that states that his preferred curtailed. solution, which is to use the existing Scotland Act to The behaviour of Ministers towards this House is provide for a referendum, was supported by a large one of the most persuasive arguments I have ever seen number of people and that he is hopeful that he can for devolution. We are not giving the proper consideration reach agreement with the Scottish Government. Frankly, that we should give to a major constitutional Bill with we have known this for some time. I should like to enormous implications. know what the numbers were, what people said and what the Government’s attitude is. What is the point of 3.45 pm us debating these matters if we do not know the Government’s policy? This has nothing to do with the The Earl of Caithness: I wonder whether my noble Cabinet; it is about the conduct of business in Parliament, and learned friend can help me with the parliamentary and we are being short-changed. procedure. We are discussing the referendums this afternoon. When are they going to be dealt with on Report? As my noble friend Lord Forsyth has just Lord Foulkes of Cumnock: That is a point on which said, they were delayed at this stage. Is it likely that we I agree with the noble Lord, Lord Forsyth. Indeed, I will be discussing them on Monday? If so, those of us have a Question down for next Monday asking when who have to travel to the far north of Scotland tomorrow the result of the consultation will be published. I will have precious little time to table amendments. It had expected it to be published before now, and certainly will give us at least a day or two longer to consider for this debate—and, if not, at least for Monday’s matters and read the Official Report if they are to be debate. However, we also have the information contained dealt with on Wednesday. It is crucial for us in how we in the Statement made today by the Secretary of conduct our business to know whether the referendum State. It makes substantial progress—we will discuss issue will be taken on Report on Monday or Wednesday. this later—in its reference to transferring tax and borrowing powers, ensuring that the new borrowing regime is sustainable and securing further devolution Lord Foulkes of Cumnock: I understand the noble in future. Lord’s frustration about the whole process and the way it has been dealt with. The noble Earl, Lord As someone who favours devolution, I find all these Caithness, makes a very good point, which others moves very positive. It is very encouraging to see that made earlier, about the time between Committee and agreement has been reached. It is also very helpful to Report. The noble Lord, Lord Forsyth, also made that have this Statement so that our debate this afternoon point effectively. can be informed by the details of the agreement that has been reached. I share with the noble Lord, Lord I think we should absolve the noble and learned Forsyth, some reservations about the general way in Lord, Lord Wallace of Tankerness, of blame in relation which the Bill has been dealt with, but in the past few to this. He has been faced with great difficulties from a days—in particular, thanks to the noble and learned number of sources. I was going to include the noble Lord, Lord Wallace—we have been helped to make Lord, Lord Forsyth as one of the people who created the debate better informed and more accessible. some difficulty for him, but I will just put that to one side for a minute. The noble Lord has had to labour with a Cabinet which has only recently begun to Lord Stoddart of Swindon: My Lords, I will not realise some of the implications of Scottish independence interfere in Scottish matters; I would not dare. However, and what it might mean—to our defence policy and to I have concerns about the business of the House a range of other things—if it were to go ahead. It has and the way in which the House is being treated. taken some time for it to realise the enormity of the Last Thursday the House sat until, I think, 10.38 pm. 923 Scotland Bill[LORDS] Scotland Bill 924

[LORD STODDART OF SWINDON] Since we last met in Committee, there have been Last night it sat until 12.43 am. That is not good two developments of significance. The noble Lord, enough, particularly when Members of the House of Lord Forsyth, referred to both of them. As my noble Commons enjoy the privilege of going home very friend Lord Foulkes suggested, they both raise some much earlier. optimism for the future handling of the Bill, but they We in this House have repeatedly implored the bring with them their challenges. The Written Statement Government not to bring forward so much legislation reflects the outcome of the negotiations. I do not that is so badly produced that we have to spend a huge know about the noble Lord, Lord Forsyth, but I knew amount of time not only discussing the overload of that a negotiation was going on, and I think that, on legislation but correcting the many mistakes that have each occasion that he referred to it, the noble and been made in the framing of that legislation. At the learned Lord indicated that there would be some end of every Session, as far as I can remember, we negotiated agreement that would potentially involve have come up against the problem of time and important some change to the Bill, so I expected that. Bills have been rushed. The noble Lord, Lord Forsyth, In my darker moments, I anticipated perhaps greater and other noble Lords who spoke were absolutely changes to the Bill than there have been, but I am not right to express concern and to raise the matter of entirely sure that we can appreciate the significance of rushing through a very important constitutional Bill the elements of the negotiation that relate to the at the very end of a Session. financial provisions of the Bill without some significantly I intrude into the debate to express the hope that greater explanation from the Government and greater for the next Session the Government will recall what time for study of them. I was not aware that these happened in this two-year Session. If they cannot get particular negotiations were going on. They adopt things right in a two-year Session, perhaps we may into the way that Scotland’s budget and the block hope that they will reconsider their programme for the grant will be adjusted following recommendations from next Session to ensure that both Houses of Parliament the Holtham report. That report relates to the way in can consider legislation at a proper pace and level which the Welsh Assembly Government are funded. without being kept here in the watches of the night, When I discovered that this morning, I downloaded and that they will produce less legislation that is better the executive summary of the Holtham report. It is prepared so that we can have a little more time to 72 pages. I do not think my printer would have enough ink discuss Bills at leisure, at proper length and as deeply in one cartridge to print the whole of the Holtham report. as necessary. I have tried to find in that executive summary exactly what this mechanism is and what its implications are. I suspect that I have not succeeded. I suggest to Lord Browne of Ladyton: The consideration of this the noble and learned Lord that at some point soon, Bill in Committee in this House has been peppered because we are running out of time, the Government with expressions of frustration from all parts of the either provide the House with a commitment that we Committee at the way in which we have had to handle will be given an adequate opportunity to scrutinise this business. I have already had my say in that regard, properly what amount to significant new details of the and I welcome the noble Lord, Lord Stoddart of process of devolving tax and borrowing powers, or Swindon, to the group of us who have had our say and explain the mechanism for doing so, if it can be done have expressed how disappointed and, in some cases, in short. angry people have been about what has happened. I do not intend to repeat what I have said in the past, which noble Lords who have heard me speak on this 4pm subject before will be pleased to hear. I say no more about that because I broadly welcome However, I want to add myself to the list of those the other parts of the negotiation. The parts that are who will be shown in the record of today’s proceedings not to do with the financial elements of the Bill are as not criticising the noble and learned Lord, Lord remarkably close to proposals made by those on these Wallace of Tankerness, who has not been part of the Benches for amending the Bill, so we welcome and will problem but has been, with many of us, part of an support them. However, the bits that relate to the attempt at a solution. I thank him for the fact that we financial elements of the Bill are potentially very have a Written Statement today, because in the normal complicated. They may be very simple. If they are, timetable of the way in which these complicated matters they can be explained; if they are complicated, we have to be considered in government—and I know need to find time because we all want to see this Bill what they are—we would not have had a Written pass in such a way that the legislative consent Motion Statement, so he must have persuaded somebody who that has now been agreed is of some consequence. is fairly senior or fairly influential, which are not That element of the negotiations was not entirely in necessarily the same thing, to have it prepared for the control of the Government, and I understand that, today. I think we are all grateful to him for doing that. because the enemy gets a voice, as it were, in these I want to record how grateful we on these Benches— environments, and negotiations take as long as they particularly the Front Bench but the Back Benches have to take. They were constrained by the legislative too—have been for the open and transparent way in timetable, but it was not guaranteed that they would which the Government and the Bill team have engaged conclude in time for us to be able to consider them with us on the progress of negotiations with the Scottish properly.I have no criticism of anyone on the government Government and in trying to find ways of dealing with side. They have reached an agreement, and I am these complex and difficult matters in a more efficient pleased that they have. If it is a good agreement, I will way. support it. 925 Scotland Bill[21 MARCH 2012] Scotland Bill 926

However, the other part of the understanding we On the point about the Written Ministerial Statement have is exactly as the noble Lord, Lord Forsyth, explained paving the way to a legislative consent Motion, the it. We had a clear understanding that if we postponed, noble Lord, Lord Browne, fairly described the situation as we did, a discussion of the referendum elements of as he understood it. When we debated this before this Bill to 15 March, which was to be a week after the moving into Committee last Thursday, I indicated to closure of the consultation, we would get a report on your Lordship’ House, not for the first time, that the conclusion of the consultation. This may not be work, negotiations and discussions were going on parliamentary language, but because we were messed between the Scottish Government and the United about we had to use 15 March for something else. Kingdom Government, and that we were hopeful that Now it is 21 March, so the Government have had they would come to a conclusion. On that occasion, more time than they expected to formulate properly I think I said that I hoped that the House, before their response to the consultation. moving to Report, would have an outcome to these I am delighted that the consultation appears negotiations. I thought that it was important, if it was overwhelmingly to support the Government’s position. at all possible, for that Written Ministerial Statement Since they consulted, in a White Paper fashion, on the to be available to your Lordships before we met today. proposal and got support for it, one would have thought I am pleased that in the event that proved to be that somewhere in the government machinery someone possible. has some idea of what they are now going to do with There was an encouragingly wide response to the that support. It would certainly be helpful if we could consultation. We received just under 3,000 responses, be told what that is as soon as possible. For example, if including many replies from members of the public it involves the acceptance of the recommendation in living in Scotland and beyond. There were contributions paragraph 23 of Professor Tomkins’ response to the from businesses, academics, political parties, trade consultation, which I think we all received copies of, unions and many others across civic Scotland. A number to use the Bill to empower the Electoral Commission of these matters will be debated when we move into to start a consultation now about the content and Committee, but I can confirm that the Government’s drafting of the question, that is directly relevant to key proposal in the consultation was that the referendum this Bill. However, it may include not that but other should be legal, fair and decisive. things, and there may be a process entirely outwith the In order to provide a legal referendum, we set out Bill that will be the vehicle for taking forward the our view that a Section 30 order should be agreed to outcome of the consultation. It is going to be very devolve to the Scottish Parliament the power to legislate difficult for us to have a meaningful discussion about for a referendum. Initial analysis of the responses these referendum amendments unless we know that. indicates clear support for that proposal. A significant In fact, if we knew what the Government were majority of those who responded to this issue agreed going to do, perhaps we could all go home early—having that powers to hold a referendum should be devolved been here until 10.40 pm the other night, that would to the Scottish Parliament. Of these, the great majority be a bonus—so some indication may facilitate the supported a Section 30 order. handling of the debate. None of us is interested—well, I may not be able to include everyone in this—in However, analysis of any consultation is not just a prolonging these matters any longer than necessary. I simple matter of counting responses, so I am pleased have done a lot, with the support of my Front-Bench that our preference for agreeing a Section 30 order was and Back-Bench colleagues, to try to facilitate this Bill endorsed by a number of constitutional experts, including so that we can get it done in time and in good order. Matt Qvortrup, Adam Tomkins and Alan Trench, as However, a few minutes spent now on indicating how well as knowledgeable organisations such as the Law the Government intend to take forward the outcome Society of Scotland, the Royal Society of Edinburgh of the consultation, even if the noble and learned and the British Academy. Lord is not in a position to say so in detail, might The fact that it is not just simply a numbers question make the rest of the day much more productive and was highlighted by the point made by the noble Lord, efficient for all of us. Of course, it might not. Lord Browne, who picked out a point in the response from Professor Tomkins on the Electoral Commission Lord Wallace of Tankerness: My Lords, I think I and the question. There were a number of substantially might deal with the final comment made by the noble written points, although obviously not 3,000. We want Lord, Lord Browne. I acknowledge the comments that to make sure that when we bring forward a report—my have been made not just about this Bill but about the understanding is that because the original consultation general timetable, but I hope that noble Lords who was a command document, any report has to go have taken part in our debates on many amendments through the process of becoming a Command Paper—we to this Bill feel that we have had constructive debates. do proper justice to the quality of the responses that Almost without exception, the amendments that have we received. been tabled have been pertinent and have done what Obviously, we will be able to say more in the debates. this House does—properly scrutinise—and the Bill Nevertheless, it is possible to give some clear indication is the better for that. Although, as the noble Lord, as to where the balance of opinion lies in response to a Lord Stoddart, pointed out, we sat until 10.41 pm last number of the detailed points—for example, on whether Thursday, even in the final three-quarters of an hour there should be one question or two, and on the timing; we had some important debates. Although we had clearly, considerably more people want it sooner rather been sitting for some time, some important and thoughtful than later—and to indicate some of the specific points contributions were made. made by a number of leading experts. 927 Scotland Bill[LORDS] Scotland Bill 928

[LORD WALLACE OF TANKERNESS] issues such as the use of the Electoral Commission. It I hear what my noble friend Lord Forsyth says can also take timing into account, as it can on the about today’s debate and any amendments that he matter of whether there is one question or more. might wish to table for Report. The noble Lords, Lord These are the things that we will seek to negotiate in a Foulkes and Lord Browne, have acknowledged that we Section 30 order. have tried to structure a debate today on the referendums in a way that is to the benefit of the Committee. After Lord Foulkes of Cumnock: If we go down that route the appropriate amendment has been moved, I wish to and there is an agreement between the Scottish Executive indicate the Government’s position by saying something and the UK Government about a Section 30 order and about the consultation. I shall then listen to comments it is brought forward, can the Minister confirm that it from noble Lords and respond at the end of the could be debated in both the Houses of this Parliament? debate.

Lord Forsyth of Drumlean: I am most grateful to Lord Wallace of Tankerness: Indeed, not only would my noble and learned friend. Given that Section 30 is it be debated but it would be voted on in both the the Government’s preferred route forward, and given Houses of this Parliament. If we move into Committee, that the consultation process is overwhelmingly in we can probably have a much wider debate on these support of that—that is what we are being told—is it matters. the Government’s intention to proceed on that basis? As that basis requires the agreement of the Scottish The Duke of Montrose: My Lords, we are up against Parliament, is it my noble and learned friend’s intention a slight hoolie on this procedure. The interesting Statement to bring forward some other Bill in the next Session of given to us by the Minister shows that quite a lot of Parliament to deal with the referendum issue? It is the measures that are currently in the Bill have been clear that there will be no time to do this with the withdrawn, so it is simplified from that point of view. Scotland Bill. The question then is whether what we are left with is purely a framework Bill into which all sorts of other Lord Wallace of Tankerness: My noble friend is legislation will be brought. However, from the point of right to say that a Section 30 order is the Government’s view of this House, it would be a great shame if the preferred route and that it is our policy to negotiate an legislation on the referendum were not set out in the agreement to that end. However, by the very nature of Bill because there is a strong restraint on this place in a Section 30 order, it would not be done through that we never vote down secondary legislation, which primary legislation. Such an order requires the consent is what will come before us if we use the Privy Council of both Houses of Parliament and the Scottish Parliament route. before being presented to Her Majesty as an Order in Council for approval. That position has received 4.15 pm considerable support. I will certainly endeavour to see how many more of the numbers around that particular Lord Wallace of Tankerness: These are proper issues point can be put in the public domain so that they can for debate. It is not the Government’s intention to be number-crunched before Monday. I will also ensure bring forward any amendment with regard to a that my noble friend’s comments on this are drawn to referendum, as I shall make clear when we come to the attention of my honourable friend the Secretary of debate the matter, when issues such as those raised by State. However, from what we have been able to digest, my noble friend the Duke of Montrose and others can the clear majority of support in the consultation is for be more thoroughly aired. that process. I hear the points made by the noble Lord, Lord Browne, on the provisions of the Holtham model, and Lord Forsyth of Drumlean: I am most grateful to those made by my noble friend Lord Caithness on my noble and learned friend, but I am actually anxious when certain issues might be debated on Report. In to save the Committee time. If the position is that the the spirit in which some of us discussed matters earlier Government are planning to proceed on the basis of a this week to facilitate these debates, I am more than Section 30 order, having had the consultation, and if willing to convene a meeting—either in person or on that needs to be negotiated with the Scottish Government, the phone—to see how we can best order business on and if Report, which will be the last opportunity to Report to meet the different needs in different parts of table amendments, is taken on Monday and Wednesday the House, to ensure proper debate on these issues and of next week, then to all intents and purposes the to see if there is a way in which we can further debate possibility of using the Scotland Bill as a legislative Holtham. I am happy to commit to write and provide vehicle to provide for an independence referendum additional detail ahead of Report stage to assist noble that would be monitored and administered by the Electoral Lords. It may be useful if we have a dialogue to see Commission with a single question has gone. The how we might facilitate a proper discussion for Lordships Minister appears to be saying that he will proceed on on the so-called Holtham model. the basis of a Section 30 order, but if he is not successful With these reassurances, I hope the House will now in that, presumably another Bill will be required in the resolve itself into Committee. next Session of Parliament. Is that not right?

Lord Wallace of Tankerness: I ask my noble friend Lord Sewel: Part of the difficulty with the Section 30 to forgive me if I have misunderstood or misinterpreted route, of which I am in favour, is not merely that we do what he said. A Section 30 order can take into account not vote against orders—except very occasionally—but 929 Scotland Bill[21 MARCH 2012] Scotland Bill 930 also that we cannot amend them. That is a real difficulty. felt. I am of course not a supporter but, as he indicated If there is a Section 30 order agreement but the House when we discussed this before, the whole idea of giving is profoundly disturbed about one aspect, it is the nuclear the Scottish Parliament a tax-raising power to set the option to vote against it. That is a very uncomfortable Scottish income tax means that part of the block that position to be in. It would require almost a draft has hitherto been determined by the Barnett formula Section 30 Motion so that the House can express a would have to be raised in income tax. If the Scottish view on the details before being forced to come to a Parliament wished to raise more, it would have to raise decision, one way or the other, on the whole order. the Scottish rate of income tax.

Lord Wallace of Tankerness: I am not sure that a Lord Wallace of Tankerness: I might have got this draft Section 30 order exists. However, the noble Lord, wrong but is Amendment 74B not about the privileges Lord Sewel, from his long experience in government, of the House of Commons? At the moment, is my makes an interesting suggestion. The most I can do at noble friend limbering up to speak to Amendment 74C? the moment is to undertake to reflect on it. I apologise if I have got that wrong. It is not only the responses from the consultation, which will inform much of the content that the United Kingdom Government would wish to see in a Section Lord Forsyth of Drumlean: My noble and learned 30 order, that is of considerable importance today in a friend is absolutely right. Amendment 74B is indeed debate on the referendum, it is also important to know about the impact on the privileges of the House of what issues your Lordships think ought to be included Commons. Everything that I said can relate to that if I in a Section 30 order. While I do not say that this is a think very carefully on my feet. Amendment 74B relates part of the consultation, it is an important part of the to the previous debate that we also had with my noble process that we have an opportunity, facilitated by friend Lord Sassoon about enabling new taxes to be amendments tabled by noble Lords, for your Lordships created in Scotland by Order in Council. That related to express views as to what you think should be in to new Section 80B created in Clause 28, which is the the order. I can guarantee that the United Kingdom power to add new, devolved taxes. It says: Government will reflect on those views. I will be very “Her Majesty may by Order in Council amend this Part so as surprised if there is too much difference between our to … specify, as an additional devolved tax, a tax of any description”. preferences, as expressed in the consultation document. I cannot think of an example since ship-money where It is important that noble Lords should take the it has been possible by Order in Council to create a opportunity today to express their views on what the new tax. We have very particular procedures for creating shape of such a referendum should be and I suggest new taxes. The Finance Bill right up until, I think, that we move on to that as soon as possible. 1969 had to be considered on the Floor of the House of Commons in Committee. Special rules apply to the Motion agreed. conduct of the Finance Bill, including—still, I think—that it is not subject to guillotine. The noble Lord, Lord McAvoy, would be able to help me with that. I certainly Clause 43 : Commencement think that it is not subject to a guillotine in Committee. The Chancellor of the Exchequer has a leeway, given to no other Minister in the Government, to have as big Amendment 74B a Bill and as much time as required. That is because Moved by Lord Forsyth of Drumlean the Finance Bill is central to the whole nature of 74B: Clause 43, page 32, line 27, at end insert— Parliament, which is about voting and raising means of supply. “( ) Section 28 shall not come into force until 60 days after the Secretary of State has laid before both Houses of Parliament a The particular innovation in this Bill enables a report on the impact of the provisions of that section on the completely new tax to be created. Mr Alex Salmond financial privileges of the House of Commons.” might decide he wants a window tax or a tax on landed estates or our local income to finance local Lord Forsyth of Drumlean: I am sorry that my government. All that is required is that an Order in noble friend Lord Sewel is not here. I beg your Lordships’ Council is approved by both Houses of Parliament. pardon. I mean my noble friend Lord Sassoon. It was As has already been pointed out, Orders in Council a Freudian slip. The noble Lord, Lord Sewel, will be are not normally able to be amended and are not forever associated in my mind with the Scotland Bill normally voted against in this House. I am most because he, of course, was the midwife of the legislation. grateful to my noble and learned friend for telling me I am sorry that my noble friend Lord Sassoon is not which amendment I am speaking to. I have tabled this with us because this amendment relates to the amendment because I cannot understand how, given extraordinary revelations that we had at some stage the position of this House in respect of taxation, it can during our 10-hour Sitting on Thursday about how be right that first, new taxes can be created by order in the tax-raising powers of the Scottish Parliament would the other place and, secondly, this House should be operate. I see that the noble Lord, Lord Kerr, is in his involved in consideration of the imposition of new place. I have always held him in the highest regard. I taxes by order. That seems to impact upon the privileges first came across him when he used to guide us through of the House of Commons. UKREP in the European Union negotiations on the In truth, however, this amendment is simply another social chapter. He is not someone who is easily lost to opportunity to raise a serious constitutional innovation, detail. He expressed a surprise that I and lots of people which creates very unfortunate precedents. I am hoping 931 Scotland Bill[LORDS] Scotland Bill 932

[LORD FORSYTH OF DRUMLEAN] court. It now appears, though, that the Government’s that even at this late stage I can impress upon my confidence that these issues can be resolved is such noble and learned friend that the explanation we were that they were able to agree with the Scottish Government given for these powers being contained in the Bill, that the aggregates levy will be devolved when that when we considered them earlier, was that the Calman resolution takes place and these issues are resolved. commission had recommended that there should be If that is the case then I agree, with regard to that powers in the Bill to provide for additional, specified tax, that it would be more appropriate to have in the taxes. This Bill does not provide for additional, specified Bill a provision that could be activated and brought taxes; it gives a completely open-ended power. into force at that point, and that this House and the We have just received, as was referred to earlier, an other place would have an opportunity to consider the indication of the agreement that has been made in implications otherwise for the devolution of the aggregates order to get Alex Salmond’s permission for this House levy in detail. When we debated that issue, if I remember to continue with the Bill. This is the deal that the correctly, the noble Lord, Lord Forsyth, proposed a Government have entered into. It provides for the detailed amendment covering the aggregates levy, and inclusion of some new taxes—some of which we have the noble Lord, Lord Sassoon, told him that technically already debated, such as the aggregates levy. Why can it was broadly correct. I may be misquoting his exact my noble and learned friend not amend the Bill on words, but he said that the noble Lord had made a Report and make provision for those specified taxes to good job of it and that it was fit for purpose. If that is be included? I do not like the order-making power. He right, at least the Government are in a position where could put that provision into the Bill and it could be most of the work has been done. That may need to be approved, then it would go back to the House of tweaked, and I dare say that the Government would Commons and would be approved there. Why can we not want to accept someone else’s amendment wholesale not have a list of specified taxes which are to be included and may want to change it slightly, but we could be in rather than this open-ended and highly undesirable a position on Report to have a debate that would do procedure, which I believe challenges the very basis of two things: satisfy this House’s desire to have a debate this House? I beg to move. about the detail of that tax and its devolutionary implications, and immediately show good faith to the Lord Browne of Ladyton: My Lords, the amendment Scottish Government because this would put a provision moved by the noble Lord, Lord Forsyth, seeks by very in the Bill that could be activated to devolve the tax. specific provision to restrict the operation of Section 28 I turn to the amendment. One of the coincidences of the Act. We on these Benches are broadly content of this amendment coming forward, or it may be not with the Act, but the noble and learned Lord who entirely a coincidence, is that this House has been speaks for the Government on these matters will, I exercised by the issue of financial privilege in some hope, remember that we moved an amendment seeking detail in committees, briefings, debates and discussion to put into the Bill at least a mechanism, which would since the House of Commons recently claimed financial lead further into secondary legislation, to have some privilege in respect of Lords amendments to the Welfare reflection of the criteria that need to be satisfied Reform Bill. When I saw the amendment of the noble before either a new or an existing tax could be considered Lord, Lord Forsyth, I was not clear exactly what he appropriate to be devolved. In response to that was getting at, but there was no shortage of briefing amendment, the Government’s position was that those available to me about financial privilege. criteria were already set out in a White Paper predating the publication of the Bill. Lord Forsyth of Drumlean: I was simply trying to Our position on these Benches is still similar to that find a way of raising the subject again. There was no of the noble Lord, Lord Forsyth. It would be better if deeper meaning behind it. there were some restriction in the operation of Section 28—or, at least, some shape to how it would operate—by reflecting through primary legislation into secondary Lord Browne of Ladyton: I do not know whether I legislation the criteria that need to be satisfied, since it am grateful to the noble Lord for that, because I had a appears that the Government have a clear and advanced very clever ending to this part of my contribution and view of what those criteria will be. This is an issue that he has prevented me moving towards it as quickly as I we intended to return to on Report, having looked at wanted to. the drafting of an appropriate amendment. I gave I have never been able to do this before in a debate: notice at the conclusion of the debate in Committee I intend to quote the Clerk of the Parliaments. There on Clause 28 that that is what we intended to do. To is a Library note on the issue of financial privilege; it that extent, we are in agreement with the noble Lord, goes into this issue in some detail, and only our Lord Forsyth, and I think also with the mood of the Parliament could produce something like this that was House when we debated this provision. so interesting and esoteric. Paragraph 18 of this report Reflecting on the specific terms of the agreement says: with the Scottish Government, it appears that the “In conclusion, it may be worth making two points … First, Government’s position on the aggregates levy is now until the Commons asserts its privilege, the Lords is fully entitled that it will be devolved, as I understand it, not if but to debate and agree to amendments with privilege implications”. when the issues which are preventing its devolution It seems, and I am grateful for this, that this is the are resolved. Up until now, I had thought that complete answer to the noble Lord’s amendment. It the conditionality in relation to the devolution of the would be ill advised of this House, given that it has aggregates levy was in the control of the European that power, to seek for the first time to try to control it 933 Scotland Bill[21 MARCH 2012] Scotland Bill 934 with legislation at its own hand. I cannot, as I am sure learned friend on the Front Bench can tell us whether the noble Lord will be devastated to hear, support his it is a Canadian barn dance, a military two-step or a amendment in these circumstances. three-step. That close connection refers particularly to individual payers of income tax. In describing this Lord Steel of Aikwood: My Lords, my noble friend close connection, my noble friend admitted more than Lord Forsyth has a technical point about taxation 30 times that the individual payers who are classified through Orders in Council, but I want to come back to as Scottish taxpayers would be nothing to do with this this basic point regarding the Bill: Section 28 talks in Bill. They could easily be English or other UK taxpayers. bold type about the power to add new devolved taxes. I hope my noble friend will take that on board. You That is something to which my noble friend is opposed; can look at new taxes but, for goodness’ sake, take he does not want the Scottish Parliament to have the care over who will be responsible. If they are not power to create more taxes, but I do. I think I am right Scottish taxpayers or Scottish voters, we will be in ever in saying that the Calman commission also wanted to deeper water. give the Scottish Parliament the power to add more taxes. Going back even to the referendum that we had, I know that my noble friend keeps saying that there is Lord Wallace of Tankerness: My Lords, my noble a difference between varying taxes and adding new friend Lord Forsyth indicated that this amendment ones, but that is too subtle a distinction. was a hook on which to hang a wider debate. I listened to the debate on Clause 28, to which my noble Lord Forsyth of Drumlean: There are three members friend Lord Sassoon responded and in which the of the Calman commission here. I am sure that my noble Lord, Lord Forsyth, made a number of points. noble friend Lord Selkirk of Douglas will be able to He raised the responsibilities and privileges of the confirm this. I think the Calman commission said that respective Houses of Parliament. The noble Lord, the Scottish Parliament should have the power to add Lord Browne, has given a very clear answer on that. It specified taxes. I am not against the Bill allowing for is also important to point out that our role is in specified taxes; I am against it being open-ended and relation to a constitutional question: should the Scottish subject to that procedure. Parliament have responsibility for a particular tax, or should it remain reserved? It is not about how a tax Lord Steel of Aikwood: That is where we differ. I am should be structured, who should have to pay it and not against the Scottish Parliament having such powers. exemptions to it. That would all have to be set out in I want the Bill to be stronger than it is. We are on a primary legislation by the Scottish Parliament, should constant road on devolution. I still believe that we a tax be devolved. want to get to the point where the Scottish Parliament I am sure it is accepted on all sides of the House has responsibility for raising the money that it spends that the question of what should be devolved to the on devolved matters. The Bill does not go that far but Scottish Parliament is an important constitutional at least it moves in that direction. issue. I rather think that if it had been suggested that I give the Committee a specific example. My noble the House of Lords should not express a view on a friend keeps talking about a window tax. Nobody in power such as that contained in Clause 28, I might be their right mind is contemplating introducing a window in greater difficulty in trying to respond to an amendment tax in Scotland; not even Mr Salmond has suggested suggesting that it should. However, I hear what my that. However, we used to have a dog licence fee in this noble friend says about the tax in relation to Clause 28. country. It was abolished some years ago because it I do not want to engage in a rerun of the debate that reduced to 37.5p. It was collected by local authorities we had when my noble friend Lord Sassoon was and it cost so much to collect that it was not worth having. responding, or indeed anticipate a debate which the noble Lord, Lord Browne, has indicated he intends to Lord Forsyth of Drumlean: That was not a tax. run when we come to Report. I am sure that there will be ample opportunity to do so. Lord Steel of Aikwood: My noble friend mutters I say to my noble friend Lord Forsyth that I think that it was not a tax. However, I am saying that it there is a genuine misunderstanding between us with could be a tax. There is no reason why the Scottish regard to what the Calman commission meant when it Parliament should not decide, as a matter of good referred to a specific tax. I think there are three other policy, that ownership of dogs, which can be a confounded members of the Calman commission in the Chamber nuisance in cities and the countryside, should be subject at the moment and I am sure that, if I have this wrong, to tax. That is a perfectly sensible proposition and they will jump up. The Calman commission identified there is no reason why the Scottish Parliament should some specific taxes such as an aggregates levy, which not decide that it is one way of adding to its tax take has been referred to, air passenger duty, landfill tax and finances. I am totally opposed to the amendment and stamp duty land tax. These were specified and specific that my noble friend is pursuing. He is making a good recommendations were made in respect of them. case by trying to undermine the basic purpose of the Paragraphs 3.170 and 3.171 of the Calman commission Bill, while I want the Bill to go further than it does. report give a general background as to why we thought there should be a power to devolve other specific taxes Lord Lyell: My noble friend made a powerful speech; in the future. By that, it was not intended that we indeed, I am half way to agreeing with him. However, should nominate in the commission’s report, or indeed our noble friend the Commercial Secretary to the in a Bill, what these specific taxes might be; rather, it Treasury referred 36 times to this extraordinary Scottish concerned the concept of a specific tax as opposed dance, the close connection; perhaps my noble and to devolving a general power of taxation to the Scottish 935 Scotland Bill[LORDS] Scotland Bill 936

[LORD WALLACE OF TANKERNESS] my noble and learned friend, I think that he is just a Parliament. I think there is perhaps a genuine little bit flippant about this. The reason I brought this misunderstanding on what the recommendation intended. issue back was not to waste the time of the House but I may have a better understanding of what that intention to underline that something very important is being was, having been party to it. done here which, as I have said, breaches a principle established in this country after ship money. Lord Forsyth of Drumlean: Can my noble and learned friend give us two examples of taxes that might be 4.45 pm added using this general power which he could not put I hope that my noble friend Lord Steel is right, on the face of the Bill? because I can think of nothing that would sweep Alex Salmond from power more quickly than announcing that he was going to put a tax on dogs— Lord Wallace of Tankerness: My Lords, the point of not putting that on the face of the Bill is to make sure that there is provision for something that might Lord Steel of Aikwood: And caravans. happen in the future. However, one possible tax could be a dog licence tax, which my noble friend Lord Steel Lord Forsyth of Drumlean: And caravans. I do not mentioned. I wish to make it very clear that it is not want to detain the House, but I know that my noble the policy of Her Majesty’s Government to have a dog friend Lord Steel got into some difficulty with dogs licence tax, nor indeed, the last time I checked, was it when he gave the former President Ceausescu a puppy the policy of the Scottish Liberal Democrats. I hope I dog following a state visit in 1974. My noble friend will not embarrass my noble friend Lord Steel by what gave one of his puppies to Ceausescu. When they had I am about to say but I remember that, in an election gone shooting, the birds were recovered by children, when I was leader of the Scottish Liberal Democrats—it so my noble friend sent one of his fine Labradors to must have been the 1999 Scottish election—and my Ceausescu. Many years later, when the regime collapsed noble friend was a candidate in Lothian, he announced and the press arrived, my noble friend received a call somewhere along the line that he wanted a caravan from an outraged journalist who asked, “Did you give tax. I had to spend a whole day making it very clear this dreadful dictator a dog?”. My noble friend explained that this was his personal view and not the view of the that he had done so as a result of a state visit and that party. My noble friend seems to be a rich source of it had been a courteous thing to do. The journalist potential taxes. said, “Did you realise that this dog had its own coach, However, one of the taxes that the Calman commission its own servants and a whole palace to live in?”. I say considered was a plastic bag tax, which had arisen in to my noble friend that dogs, politics and tax are best the Scottish Parliament where all sorts of ways had not mixed. been found to try to see whether it could be brought My noble friend suggested a tax on plastic bags. within competence. That is the context. I hope that The mind boggles as to how large firms such as Tesco before we come back to this matter on Report, my and others would operate if there were different taxes noble friend will look at paragraphs 3.170 and 3.171 and on plastic bags north and south of the border. will understand the context in which the recommendation was made. Lord Wigley: Is the noble Lord aware that there is a I may be anticipating the debate we will have next plastic bag tax in Wales? week, but putting criteria on the face of the Bill would undoubtedly give the courts the ability to decide whether Lord Forsyth of Drumlean: I rest my case. I was not they have been met. The question of the extent to aware that there was a tax on plastic bags there, but if which these criteria have been met is, I believe, a it is thought to be appropriate to have a power to political one, and one which Government and Parliament introduce such a tax, it should be specified in the would be best placed to determine when a particular Bill—not as part of a general power. However, I can issue presents itself. However, it is clear that we will see that I am making no progress on this and I have an opportunity to return to this so I will not therefore beg leave to withdraw the amendment. detain your Lordships further. I invite my noble friend to withdraw the amendment. Amendment 74B withdrawn.

Lord Forsyth of Drumlean: Ihavetosaytomy Amendment 74C noble and learned friend that that was a disappointing response. I thought that if I gave him the chance to Moved by Lord Forsyth of Drumlean discuss this important constitutional position again, 74C: Clause 43, page 32, line 27, at end insert— having thought about the arguments, he would perhaps “(1A) Notwithstanding any other provision of this section, no say that he would narrow the rather wide focus of the provision of section 30 shall come into force until the provisions Bill. I wonder how the House would react if my right of that section have been approved in a referendum held in honourable friend’s Budget was implemented with a England.” Finance Bill which said that it would be possible to introduce new taxes by Order in Council, approved by Lord Forsyth of Drumlean: My Lords, this is the both Houses of Parliament. I think there would be an amendment that I was speaking to previously. It is a absolute stampede, yet that is what we are proposing device that provides for a referendum in England on should happen to people in Scotland. Having praised Scottish income tax powers. I tabled the amendment 937 Scotland Bill[21 MARCH 2012] Scotland Bill 938 in order to discuss the letter that my noble friend Lord would be £4.8 billion. The UK Government raise the Sassoon circulated, following our debate on the Bill on personal allowance UK-wide, estimated by the OBR 15 March. at £3.5 billion. The OBR forecast of the impact on Scottish income tax receipts is a reduction of £100 million. I suggest that the English should have a say on this Therefore, receipts from the Scottish income tax are because of the extraordinary revelation in Committee expected to be reduced to £4.7 billion. Therefore, the on the position of the Scottish Parliament if a change Treasury adds £100 million to the Scottish budget to in taxation policy were to be introduced by the Chancellor offset the impact of what is called UK policy change of the Exchequer—as has happened today, for example, and the outcome is that the Scottish Government’s when he raised to just over £9,000 the allowance before budget remains the same. people pay income tax. The no-detriment principle is not in the Bill but has, as I understand it, been agreed This is “Heads you win, tails you win” economics. between the Government and the Scottish Government, It is completely unfair. It is just reinstating the block or has been proposed as part of the arrangements. I grant. I am no advocate of this policy, but if the see that in the Written Statement today concerning the Government want to go down this track the sensible negotiations on legislative consent—which we can debate thing to do would be to give the Scottish Parliament at a later stage—those arrangements go even further. control over the allowances and the rates. This is nonsense. It also applies to changes in the benefit The idea is that Scotland would benefit from the position, because people’s entitlement to benefit will reduction in income tax that people paid as a result of be altered by their net income. If the Scottish Parliament the increase in allowances, but that England would were to put up tax, which it will certainly have to do, send a cheque to compensate for the reduction in the and Scotland becomes the highest-taxed part of the tax revenues in addition. The argument for having the United Kingdom, as it certainly will, that means that 10p tax is that it will affect only a small proportion—by people’s entitlement to benefit will increase. The cost the way, Ministers keep saying that it is 30 per cent; I of that will fall on the English taxpayer. I raise this think we were told today the precise figure by the because, if my noble friend accepts my amendment, Office for Budget Responsibility.Hitherto, the assumption which is to give the people in England a referendum has been that about £4.5 billion would be raised by the on this scheme, I do not think these proposals will 10p rate of income tax and that if the Scottish Parliament stand the test of time. If, as I suspect, he will not wanted to spend more it could put that income tax up. accept my amendment, then I urge him to abandon The proposition that, because the 10p rate does not this ridiculous no-detriment principle. The no-detriment raise £4.5 billion any more because people in Scotland principle is a no-accountability principle. It drives a are paying less tax, people in England should have to coach and horses through the whole philosophy and pay more tax to send an addition to the Barnett thinking of the Bill. I have no idea where it came from. formula-determined part of the block seems to me to If he is going to maintain this no-detriment principle, drive a coach and horses through the whole argument then it ought to be written on the face of the Bill. It of accountability. should not be the product of a quiet deal that no one knows anything about, which flies in the face of what If my amendment were accepted and the proposition was said in the manifestos of those parties that committed was put to people in England by a referendum that the themselves to introducing the Calman proposals. I beg Scottish tax powers should operate in that way, I think to move. that there would be an overwhelming rejection, because it is completely unfair and unworkable and will create Lord Kerr of Kinlochard: My Lords, it is déjà vu all great difficulty. over again. I supported the noble Lord, Lord Forsyth, In his letter to me, which has been circulated to the last time he raised the matter. Although I do not Members of the Committee, the noble Lord, Lord agree with this amendment, I am very glad he has Sassoon, goes on to deal with another issue, which is moved it, because it enables us to discuss it again. I benefits. If, as has happened today, the Chancellor had not understood the no-detriment principle. It was raises the thresholds at which people pay tax, that painstakingly explained to me by the Minister and the means that there will be a change in their entitlement noble Lord, Lord Sassoon. I have not been favoured to benefit. There is a requirement here for changes in with the letter of the noble Lord, Lord Sassoon, so people’s eligibility for benefit and the effect that that forgive me if I am behind with the debate. As it was has in Scotland to be compensated for by taxpayers in explained, it is indeed exactly as the noble Lord, Lord England. In his letter, my noble friend says that I Forsyth, says. However, look at it the other way round. should not be too worried about that because the costs It would be paradoxical if the basic tranche of income are likely to be low. I hope that this letter will be put in tax, before the Scottish tax is added in on top, was the Library or in a form which people outside the reduced. The Scots would receive a cheque from the House can access. United Kingdom Exchequer. That seems to be very odd. However it is politically even odder, and possibly In the annexe to the letter, my noble friend sets out unsustainable, if it is the other way around. Supposing a little flowchart, which starts with the Scottish budget Chancellor Balls had decided that we needed a higher being £28 billion and Scottish income tax receipts level of spending, and therefore a higher level of being £4.8 billion. Then, the Scottish block is adjusted taxation. The Scots would have to send a cheque and downwards by £4.8 billion to create headroom for they would have paid the higher level of taxation, so the Scottish rate of income tax, which means that the would have had less to devote to the higher spending Scottish budget is £28 billion, and the block grant is which the proceeds of the tax would have brought in. I £23 billion because the Scottish income tax receipts do not understand this no-detriment principle. 939 Scotland Bill[LORDS] Scotland Bill 940

[LORD KERR OF KINLOCHARD] Lord Browne of Ladyton: My Lords, I do not support I draw from that unsatisfactory example exactly the the noble Lord’s amendment. In case anyone should opposite conclusion from the one the noble Lord, be in any doubt about this, I do not support a referendum Lord Forsyth, draws. I go with the noble Lord, Lord on any aspect of this Bill because I do not think that it Steel of Aikwood. It seems that we need more but I is appropriate for us to make any of the provisions of apologise to the noble Lord, Lord Forsyth, as he was the Bill conditional on a referendum, either by the saying much the same today. The trouble with this Bill Scots, the whole of the UK or indeed the English. I is that it is a Sir Clive Bossom Bill. Sir Clive Bossom shall perhaps have an opportunity to explain later that calls on the leader of his party, then the leader of the referendums are for extraordinary circumstances and Opposition, when he joins the House of Commons. this is not one of those sets of circumstances. The only sentence he gets out of Mr Churchill is, Secondly, in this context, I would never support a “Bossom, eh? Neither one thing nor the other”. That referendum by the people of England in any event is what is wrong with this Bill. It is not actually because, in my view, that would be a fundamental devolving real accountable taxing authority to the misunderstanding of the concept of devolution. Scots. It is still the block grant system with a little Devolution depends on the relationship between the add-on which is presentational rather than substantive. United Kingdom and Scotland and not between England I would much rather see a genuine devolution of and Scotland. I am not being pedantic; I could go on taxing power. I would start with indirect taxes. Then to say why England, and not Wales and Northern you will not have any of the problems of defining who Ireland. The noble Lord nods so I am sure that he gets the taxpayer is, residence and so on. I would start at the point. This is a vehicle for him to have a wider and that end. I would concede from this Parliament to the broader debate and I understand that. It is important Parliament in Edinburgh much greater power in order that we do not repeatedly categorise these issues as to deal with the real deficit, which is the accountability issues between England and Scotland. This is about deficit. I accept that as a consequence of that, one devolving power to a part of the United Kingdom and would have to have a rather strict control on the holding that part of the United Kingdom in the macroeconomic effect of a degree of fiscal autonomy, United Kingdom. We have done it to Northern Ireland so that we did not see a repetition of what we see in and to Wales and we have done it substantially to continental Europe right now. I accept that that follows. London in many aspects of public policy. However, it would be better to get into that area than to pretend to do devolution of taxation and end It is challenging and difficult for this Parliament up with this rather miserable little measure. I understand and for people to understand because it is utterly its logic; I used to work in the Treasury. It is the logic asymmetric across the country, but, in my view, it is a of the Treasury office of accounts. It is the logic of the celebration of the diversity of the United Kingdom. I public expenditure side of the Treasury. It is a book- know that there are those among us—the noble Lord, keeping logic. However, if you think of its economic Lord Steel, is one of them—who would like to see effect—if you think of it in economic terms—it is absurd. a more federal structure where there was less of an asymmetry and much greater clarity. However, the 5pm reality is that many parts of the United Kingdom are not ready for that, as they have made clear to us, and it The Earl of Caithness: My Lords, I support what should not be imposed upon them. Ironically, in the has been said so far. The present situation, as is history of devolution in Spain, that sort of structure increasingly becoming clear, is untenable. It goes against was imposed on the Spaniards and those who were the principle that I have been arguing all the way least interested in it made the most out of it. I say that along. I am in agreement with the noble Lords, Lord in passing. So I do not support a referendum. I would Foulkes of Cumnock and Lord Steel of Aikwood. I certainly not support a referendum by only English believe that the only sensible way for the Scottish voters. MSPs to be accountable is for them to be able to raise revenue as well as spend it. We are prohibiting that I turn to the no-detriment principle. I thank the accountability and to me that is a very serious mistake noble Lord for raising this issue again. In the absence which needs to be corrected at a later stage of the Bill. of my noble and learned friend Lord Davidson of I think it is untenable for the future and unless we nip Glen Clova, who is part of our Treasury team and is this in the bud now, it will be of increasing concern also a Scottish affairs spokesman, I have to deal with and will lead to a distortion of some of the benefits of it. I was reluctant to engage myself in the debate the devolution. It will become a real Achilles’ heel for last time it came up, but got slightly frustrated with people. Every time there is a change of allowances in the misrepresentation of what I thought was the one country that is different from another, we will no-detriment principle. I stuck my nose into it, suggesting, have these consequences. Now that we know exactly indeed, that this letter be written, but it appears that what will happen, we have a real problem ahead of us. the letter has just given those who wish to misrepresent the no-detriment principle even more ammunition to do it. Lord Lyell: Perhaps I may put a gloss on what my noble friend has said about these taxes. He refers to The no-detriment principle in this context was first accountability. I make the point that in Clause 30 of raised, as I understand it, in the Command Paper the Bill, let alone anywhere else, there is no accountability that accompanied the Bill. My understanding of the to English, non-Scottish voters, who will be classified no-detriment principle is probably best expressed, by the Bill as Scottish taxpayers. Where is the interestingly enough, in a paragraph of the Holtham accountability? It is not there. report. This may be entirely the wrong part of the 941 Scotland Bill[21 MARCH 2012] Scotland Bill 942

Holtham report for the purpose of the agreement that UK Governments and no doubt adept at finding our has now incorporated this into mechanisms for the way around the full version of the Holtham report to future between the Scottish Government and the UK understand how the no-detriment principle will work. Government, but it does what I want it to do. It is I prefer the simple statement in paragraph 5.2. If that paragraph 5.2 of the substantial executive summary of is what the Government are about, I support them. If the Holtham report. The executive summary is 72 pages they could find a way of making that clear in a way long. I shudder to think what the whole report is like, that we could refer to in future to ensure that that is and I certainly do not intend to spend a weekend what will happen when people adjust grants, I would between now and the Report stage reading it. support them even more. I look to the noble and If I have understood the Written Statement from learned Lord, who has not until now dealt with these the Secretary of State for Scotland, the principle of financial provisions—neither have I—to reassure the no-detriment is now to be qualified by reference to the House that in the near future there is a mechanism Holtham report and the mechanism in it about budgets that will allow us to do that. and block grants. If I have misunderstood that entirely then, at the risk of encouraging the same sort of Lord Wallace of Tankerness: My Lords, I am in a pantomime that we saw earlier in another place, perhaps position similar to that of the noble Lord, Lord Browne, someone on the Front Benches could either nod or in having to deal with matters that hitherto were dealt shake their head, but if I am right this encapsulates the with by my noble friend in the Treasury. I fully accept no-detriment principle: that my noble friend’s amendment is a hook. I share “Risks consequent on the actions of the Assembly Government the view expressed by the noble Lord, Lord Browne— should be borne by its budget and risks consequent on the action of the UK Government should be borne by UK budgets. Risks outside government control and arising from elsewhere should be Lord Foulkes of Cumnock: Perhaps I may take the pooled across the union”. opportunity of sending good wishes to the noble Lord, Lord Sassoon, for a speedy recovery. It goes on to refer to how difficult that is to do. I accept that it is very difficult, but as I understand it, that is what lay behind the no-detriment principle. If Lord Wallace of Tankerness: I hope that I did not Holtham is now to be incorporated into that agreement, imply that he was ill. I am not aware that he is. then that may make it easier. If that is right, with all due respect to the noble Lord Foulkes of Cumnock: I assumed that he had Lords who have supported this interpretation, adjusting retired hurt. the block grant for Scotland in response to policy decisions made by the UK Government in no way Lord Wallace of Tankerness: I am sure that, after all undermines the accountability of the Scottish Parliament the good will that has been expressed, he will relish or the Scottish Government. They are accountable for coming back to the fray next week. I do not for a what they do. The point about the no-detriment principle moment think that he is ill; perhaps I may quash that is that they should not be accountable to their electorate rumour. for what the UK Government do. We can call it what we like, but that is essentially what this is trying to As the noble Lord, Lord Browne, indicated—and achieve. perhaps my noble friend Lord Forsyth would accept—to include only the people of England and to exclude the I see the noble Lord moving in his seat. This is what people of Wales, Northern Ireland and Scotland would I fear, of course, when I start to get into this area of not be appropriate. We should bear in mind that complexity. Before I allow the noble Lord to intervene, the proposals in the Bill were in the manifestos of the perhaps I may remind the Committee that when we Conservative, Labour and Liberal Democrat parties, were discussing the developments before we started on which applied throughout Great Britain at the last the fifth day of Committee I said at the outset that it election. My noble friend indicated that he wished to would be extremely helpful if, between now and the return to the issue of the no-detriment principle, which conclusion of the debates on the Bill, the Government he pursued on Thursday of last week. It prompted my set themselves the task of explaining where we are noble friend Lord Sassoon to write a letter. My noble now in relation to this principle and how it works. It friend asked if it could be put in the Library. I will may be that the noble Lord, Lord Forsyth, will never make sure that that is done, because it has the benefit be satisfied that accountability should be encapsulated of a flow chart that I could not begin to describe from only in the actions of the Scottish Parliament. He has the Dispatch Box. a very distinctive view about the Bill and about the I will try to explain—I accept that I will not necessarily Parliament’s relationship with the rest of the United succeed—what the no-detriment principle is about Kingdom, which few of us share. However, some of us and why we believe that it is fair and does not detract could be satisfied that there might be a way of expressing from accountability. I agree with the noble Lord, Lord this with greater clarity than it has been, and perhaps Kerr of Kinlochard, and with my noble friend Lord also of incorporating it into part of the Bill before it is Caithness that more accountability is crucial and that beyond amendment so that it becomes clearer than it the Scottish Parliament should be accountable not is at present. simply for spending money but for raising it. My It now appears that we have not only to read a starting point is that it is wrong to suggest that the Command Paper but be sufficiently familiar with the no-detriment principle is about allowing the Scottish details of the negotiations between the Scottish and Government to have their cake and eat it. 943 Scotland Bill[LORDS] Scotland Bill 944

[LORD WALLACE OF TANKERNESS] decided to raise personal allowances from £6,475 to £7,475. The first flaw in the argument is to suggest that if This decision cost the United Kingdom Government there is a tax benefit—for example, through the measure approximately £3.5 billion across the United Kingdom. in today’s Budget to raise the personal allowance, Since the proposal in the Bill is to devolve around which I very much welcome—it will accrue to the 3 per cent of income tax, the cost to the UK Exchequer Scottish Government. It will accrue to Scottish taxpayers, from raising personal allowances would reduce to along with those of England, Wales and Northern 97 per cent per cent or around £3.4 billion. The Ireland. As I will seek to explain, it has an effect on the remaining £100 million would fall on the Scottish revenue that would then be generated for the Scottish budget. It would be a cost as a result of a decision for Government. which the Scottish Government were not accountable. If the Scottish Government had set a budget and a 5.15 pm rate of tax and had planned their public expenditure Lord Forsyth of Drumlean: Yes, it does. The effect is on that basis, and then, some four or five months later, that the amount of tax that people pay in Scotland as the result of a decision for which they had no will go down. Therefore, if the Scottish Parliament responsibility or accountability, they suddenly found wished to be compensated for the loss, it would put up that their budget was £100 million short, the no-detriment the tax so that it remained in the same position. principle is intended to make up that difference because it is a decision for which the Scottish Parliament will not have had responsibility. That is why I believe that Lord Wallace of Tankerness: This is where there is a it is important for accountability, because not to do so misunderstanding. This is about making a shared tax means that suddenly a Scottish Government perhaps base work in a way that is fair and revenue neutral to have to carry the can for particular expenditure to both jurisdictions. My noble friend Lord Caithness which they were committed but could not longer said that if the Scottish Parliament chose to change afford, not through any decision that they had made, the allowances, it should bear the responsibility. The but through a decision made by the United Kingdom. whole point of these proposals is that it cannot change The obverse is true; for example, if the Scottish the allowances. The personal allowance is determined Government get a windfall because the tax base has by the United Kingdom Government. That is the changed, it is only right that that windfall is recovered nature of a shared tax base. The argument is that if by the United Kingdom Government. that tax base is changed, there ought not to be detriment to the Scottish Parliament. Under the no-detriment principle, the UK Government would compensate the Scottish budget for any cost that led to a reduction in the tax, but at the end of Lord Kerr of Kinlochard: Let us look at this the other the day the cost to the United Kingdom is exactly the way around and think about the ease and the political same as it would be if this Bill were not implemented—that acceptability in Scotland of making the case that if the is, the £3.4 billion that it loses in revenue because of Chancellor decides to put taxes up, not down, the Scots, the increase in the personal allowance and the £100 million in addition to paying the taxes, should send a cheque that it then gives to the Scottish Government. to London. It is the reverse of the case that the noble and learned Lord has just been discussing. Lord Forsyth of Drumlean: I am sorry to persist in this; perhaps I am just being thick. To take the example Lord Wallace of Tankerness: It is very unlikely to given by the Minister, which is the same example that I happen, but let us say that the personal allowance had tried to give from the flow chart, if the Scottish gone down rather than up. It would have been a Government find that their block grant is short of windfall to the Scottish Government. The argument £100 million as a result of the increase in the allowances, therefore is that on a no-detriment principle, it should that means that the amount that people are paying in operate both ways. I shall come on to explain that. tax in Scotland has gone down. Why can the Scottish I shall try to make this as simple as possible, but it is Government not just use their tax-raising power to get not readily simple. From April 2016, the income tax the £100 million back from the people who have base in the United Kingdom will be shared between benefited? That is how the model is supposed to work. the United Kingdom and Scotland. With 10p from all If the Minister is not happy with that, why does he rates in Scotland expected to yield between £4.3 billion not go further and give the Scottish Parliament the and £5.6 billion over the OBR’s forecast period, the ability to change the allowances as well as the rates? In Scottish Government will receive around 3 per cent of those circumstances, if the Chancellor wishes to raise UK income tax receipts. The Scottish Government the allowances and the Scottish Government do not, will be responsible for setting their rate of income tax they do not raise the allowances. I am making the case and the United Kingdom Government will be responsible here for more devolution, not less—not on the grounds for everything else, including, for example, personal that I am committed to more devolution but on the allowances. In such a system, the UK Government grounds that this is a complete dog’s breakfast. must be accountable for decisions that they take on the structure of the tax. Conversely, the Scottish Lord Wallace of Tankerness: My Lords, I cannot Government must be accountable for the decisions accept that last comment, but I can now see where my that they take in respect of the rate. noble friend is coming from. I welcome anyone who I shall give an example—the example seen in the wishes to express the case for going further. Of course, letter from my noble friend Lord Sassoon, but seen the he is well aware that what has been presented to other way. Last year the United Kingdom Government Parliament here is something that was worked on over 945 Scotland Bill[21 MARCH 2012] Scotland Bill 946 a long period of time during which a consensus was Scotland, so the Scots need to be compensated for the achieved. There was never likely to be a consensus in additional buoyancy in the Scottish economy. That is favour of devolution of the whole tax base, as opposed quite difficult politically. The reverse case, which the to the tax rate. Minister prefers not to talk about, is almost impossible My noble friend is basically saying that it should to present politically in Scotland. never be the case that a change in the tax base—for The trouble is that these tax revisions are neither example, the increase in personal allowances—should fish nor fowl; they are only a good red herring. We are benefit taxpayers in Scotland. He is saying that if the not addressing the real issue on taxation. I entirely UK Government, who are still responsible for a substantial agree with the noble Lord, Lord Browne of Ladyton, level of services in Scotland, take tax from the Scottish that accountability is accountability for spending and people, the Scottish people should never be allowed to for raising the money which you spend. Until we get take the kind of benefit that I believe they should—and that and get away from having the block grant as the I think that he once wrote a pamphlet on the benefit of control, we will have a continuing unsatisfactory situation. raising the personal threshold—and the Scottish Parliament should raise its rate of tax to account for that. That is not accountability; that is a decision Lord Wallace of Tankerness: My Lords, I certainly taken by the UK Government to bring benefits right agree with the final point that accountability is as much throughout the United Kingdom. about what you raise as what you spend. The point at the heart of the statement on funding and the no-detriment It would seriously undermine the United Kingdom principle is that one should not be accountable for if Scottish taxpayers were not allowed to receive the consequences which you as a Government would have benefit of a change to the UK tax base. It could mean to see through but which are the result of a decision that the tax change would reduce the amount of money that you have not made. Having to say why a certain available to the Scottish Government, so that budgetary project does not take place—following not a decision considerations and calculations that had been put that you have made but a decision made by another forward and might well have been voted through by Government—is not accountability. That is what one Parliament would no longer be sustainable because of is seeking to address, and it links in with what has been a decision taken by a body other than the Scottish said about the Holtham principle. Again, there is an Parliament. That is the essence of the no-detriment intention there that, if the Scottish Government’s tax rule, and something that lies at the heart of the statement proposals promote buoyancy in the Scottish economy, of funding policy. that should be to the benefit. Likewise, if they have tax I will read out the statement of funding policy, proposals which have an opposite effect—they drive because the noble Lord, Lord Browne, might find that away enterprise and reduce revenues—there should be it echoes the passage from the Holtham commission a negative consequence. A letter is not necessarily the that he read out. It says: best way to go through this issue but I am certainly “Where decisions taken by any of the devolved administrations open to ways in which we can go through it in more … have financial implications for departments or agencies of the detail. This point links to the Holtham point made United Kingdom Government or, alternatively, decisions of United earlier by the noble Lord, Lord Browne. Kingdom departments or agencies lead to additional costs for any of the devolved administrations … the body whose decision The principal point is that this is not an issue of the leads to the additional cost will meet that cost”. Scottish Government getting two bites of the cake. It That is where accountability properly lies. is to ensure that where a tax decision is made regarding the UK tax base by the UK Government, all taxpayers This is not something new that has suddenly been throughout the United Kingdom are treated in the dreamt up. There are probably people in the House same way as a result of that decision. It means, too, who were involved at the beginning of devolution and that if that decision has consequences—either inflating this principle has been in the statement of funding the money coming into the Scottish Government or policy since then. I believe that it is fair that Governments reducing it—a rectifying amount is paid back or perhaps —be it a UK Government or a Scottish Government— withheld from the block grant or, alternatively, is paid should be accountable for the decisions that they in addition. I regret that it is not the easiest thing to make, but they should not be able to export some of explain and there may be another way of discussing it the implications of their decisions on to another other than across a Chamber. However, I emphasise Government, who should not be held accountable for that it is not a question of having your cake and eating the decision of another Government. it; ultimately, it is a question of ensuring accountability and making sure that the Scottish Government do not Lord Kerr of Kinlochard: I understand the Minister’s become accountable for a decision that is not their logic, which seems to depend on the control total own. I cannot put it more simply than that. Although being the block grant. The block grant is what matters. we may well return to this issue, on that basis I ask my All this stuff about tax is for perception and presentation noble friend to withdraw his amendment. at the edges. The block grant has to be maintained. Apparently the example in the Sassoon letter, which I 5.30 pm have not seen, concerns a case where the Scottish economy would have benefited from the additional Lord Forsyth of Drumlean: My Lords, I have to say buoyancy and spending power of a reduction in the that I think this is a complete dog’s breakfast and level of taxation paid by Scotland. However, because I agree entirely with the noble Lord, Lord Kerr of we are seeing everything through the prism that the Kinlochard. My noble and learned friend has struggled block grant is the control, it needs to be maintained in valiantly to try to explain why the Scottish Parliament 947 Scotland Bill[LORDS] Scotland Bill 948

[LORD FORSYTH OF DRUMLEAN] for benefits will depend on net income. That means should not be accountable for a decision made by the that if Scotland, as I suspect it will, becomes the Chancellor to change the tax base by altering the highest taxed part of the United Kingdom, net incomes allowances. However, he has not dealt with the point will be lower and therefore it will be necessary for made by the noble Lord, Lord Kerr of Kinlochard, benefits to be increased. Perhaps my noble and learned about the politics of Scotland having to send a cheque friend will help me with this. If, for example, the to England, but I thought I would keep off that Scottish rate of income tax was higher and the effect in case— was to reduce net incomes and therefore more would need to be paid in benefits, would the Scottish Government Lord Wallace of Tankerness: I hope that I made it have to send a cheque to the UK Exchequer to deal clear in my response but I shall repeat the point. This with the consequences of the fact that in Scotland is reciprocal because it goes two ways. If a change to more people were dependent on benefits? Politically, I the tax base led to an increase or windfall for the think that that, too, would be extremely difficult. Scottish Parliament, that would be recoverable—not As the noble Lord, Lord Kerr of Kinlochard, has by England but by the United Kingdom Parliament. pointed out, the no-detriment principle is basically just trying to replicate the block grant and dress it up Lord Forsyth of Drumlean: Indeed, and I understand as income tax. The consequences will be that everyone that, but I am talking about the politics of it in the in Scotland will end up paying higher income tax than context of there perhaps being a higher rate of tax in people in England in order to finance a vehicle which Scotland. I would not like to be the Minister who had does not do what it says on the tin. to explain why it was necessary. For example—thank goodness the Chancellor did not do it—let us suppose he had abolished tax relief on higher-income pension Lord Wallace of Tankerness: There is a point that contributions. That would create exactly the kind of my noble friend is not addressing: no amendment has situation under this odd regime in which the Scottish ever been brought forward to devolve allowances. It Government would have to send a cheque to England. would be a major change to make at this stage of the My noble and learned friend looks quizzical and Bill and he has not advanced the idea before but, that perhaps I am wrong, but if the tax relief were removed apart, it did not commend itself to the Calman there would be a windfall benefit for the Scottish commission or to the Government. Is he saying that Government. The product of a 10p income tax would the United Kingdom Government cannot make changes be less, or are we saying that this would apply only to to a tax allowance which will benefit all taxpayers in direct changes to allowances in respect of income tax? the United Kingdom and that, if they do, they will be If that is the case, surely it would be sensible to allow giving with one hand and the Scottish Parliament will the Scottish Government to make changes to tax be taking away with the other? That is an untenable allowances rather than compensate them for the effect position for a unionist to take. of changes. There is an idea that they would be caught midway through a Budget by a sudden change—perhaps Lord Forsyth of Drumlean: It is not my idea. It is the £100 million example given by my noble friend—but, the noble and learned Lord’s idea to introduce a Scottish as we have seen today in the reduction in the top rate income tax. We have never had a Scottish income tax. of tax or the increases in allowances, these are normally If my noble and learned friend is saying that it is not a planned well in advance. Provision is also made in the good unionist position to have a Scottish income tax Bill for the Scottish Parliament to borrow money and along with a UK income tax, I could not agree more. to have access to funds where there are changes. That is what is wrong with the Bill and why I am My noble and learned friend has not dealt with the against it. If you want to go down that road and you argument. The simple way to deal with this is as have set out the arguments for accountability on that follows. If a change is made to the allowances, the basis, then do it properly and introduce a system that revenue consequences will be that the product of the is workable. 10p tax instead of being £4.2 billion or £4.5 billion will Let us leave the issue of allowances. When we have be £4.2 billion or £4.4 billion. That £100 million Scottish income tax it will be possible for the Scottish shortfall could easily be recovered by increasing the Parliament to set the rate at whatever level it chooses—and rate of tax. The Scottish Parliament would not be not only the basic rate but the intermediate rate and disadvantaged by that because it would simply have to the top rate. Mr Alex Salmond can have a top rate of increase the rate of tax. There might be a problem of 60 per cent and a basic rate of 30 per cent if he wants, timing, but there is a provision for borrowing to deal and you can have a Government in England and the with it, and that would give direct accountability. I rest of the United Kingdom cutting taxes. Therefore, agree that it is messy, but for the life of me I do not it is absolutely central to the proposal that there is the understand why we are going on with this exercise possibility—I would say the probability—that people where my noble and learned friend will not concede in Scotland will not benefit from wise tax policies such that, rather than have a very complicated provision for as those pursued by my right honourable friend the tax, it would be better to provide that the Scottish Chancellor of the Exchequer today. Government are able to change the allowances as well When my noble and learned friend says that if you as the rate if the UK Government see this as a great do not have the no-detriment principle people in Scotland administrative difficulty for them. will not benefit from increases in the allowances for My noble and learned friend did not deal in his tax purposes, that is nonsense. It would be up to the response with the problems that arise from welfare. As Scottish Government. The Scottish Government would I understand it and as his letter points out, eligibility find that their block grant was reduced by a set amount, 949 Scotland Bill[21 MARCH 2012] Scotland Bill 950 but they could get that set amount by taking the money Lord Wallace of Tankerness: As I understand it, the from the taxpayers in Scotland, who would have benefited Scottish Parliament has sent its response to its Scotland from the reduction in the allowances. That is the whole Bill Committee. In that, it indicated in similar terms to principle. My noble and learned friend shakes his our Written Ministerial Statement what the agreement head. The principle is that the Scottish Government is. It has tabled or will table a legislative consent are accountable for their spending and they have to Motion on the basis of following on from that agreement. raise that money through tax. The change in the That Motion should certainly be dealt with before our allowances means that the tax available to them is less Third Reading but obviously I am not responsible for and therefore, if they want to continue the same level the timing of debates in the Scottish Parliament. of spending, they will have to raise the tax. My noble and learned friend is running away from this because Lord Forsyth of Drumlean: You have to admire the of the administrative difficulties that would be involved way that the Scottish Parliament is run. Its committee in dealing with the allowances. made 25 major recommendations for changes to this On the point about there being no amendments on Bill which effectively involve devo-max. They were full allowing the Scottish Parliament to set the allowances, fiscal autonomy and a range of other things. Those sat I shall happily oblige: I shall table one for Monday on the table from before Christmas until now. Due to and we can discuss this again. I shall be interested to the brilliance of my noble and learned friend, he and hear how someone who is committed to the policy of his colleagues had a meeting with the First Minister making the Scottish Parliament accountable can possibly and suddenly everything that the committee said vanished argue against it being able to set the allowances as well like snow off a dyke. We are told that a procedure will as the rates. Youwould have to have a Scottish allowance, be followed that will result in the Scottish Parliament of course, just as you have a Scottish tax, and it would giving agreement. That really is the accountability that operate in exactly the same way. However, by attacking we all came to expect from devolution. We have here this principle, my noble and learned friend is attacking one man—the First Minister—deciding what happens the basis of the Bill—and I do so agree with him on and everybody else falling into line. Otherwise, it that. I beg leave to withdraw the amendment. would not be possible to deliver this. Fortunately, it does not quite work like that in this Amendment 74C withdrawn. House. I have a few points to raise on this issue of legislative consent. The first thing we need on the Amendments 75 and 76 not moved. record is the Government’s position on legislative consent. I pressed my noble and learned friend on this before Amendment 76A had been withdrawn from the Marshalled and I hope he will tell us now that he has finished his List. negotiations. Is the Government’s view that legislative consent is desirable but in the absence of it they will Amendments 76B to 84 not moved. proceed anyway, is there a new constitutional principle that we do not do things without legislative consent, or is the constitutional principle that we try to get Amendment 85 legislative consent if it is practical? That is very important Moved by Lord Forsyth of Drumlean because it will impinge on the debates that we are about to have on the referendum, where the Government 85: Clause 43, page 32, line 40, at end insert— say that they will proceed by Section 30 but Section 30 “(4A) The following provisions shall not come into force until requires legislative consent. I want to be absolutely clear the Scottish Parliament has passed a legislative consent motion signifying its consent to those provisions— where the Government are on the issue of legislative consent. In the absence of legislative consent, would the (a) sections 12 to 14, Government still proceed? That is not a perfect example (b) section 27, and because of course the referendum issue has nothing to (c) Part 3. do with the Scottish Parliament as it is a reserved (4B) If the Scottish Parliament fails to pass a legislative power. In respect of non-reserved powers for the Scottish consent motion under subsection (4A) within two months of the Parliament, where are we on legislative consent? passing of this Act, then the provisions listed in subsection (4A) shall lapse.” I want to pick up one thing from the Statement that my noble and learned friend made today on what has been agreed. That is the first section, which says: Lord Forsyth of Drumlean: My Lords, I will speak “The Government will ensure that changes in the Scottish briefly to this amendment, which relates to the Scottish Government’s budget are closely linked to the performance of its Parliament passing a legislative consent Motion and economy by adjusting Scotland’s budget to reflect new tax powers certain parts of the Bill not being implemented. This using the model recommended to the Welsh Assembly in the has been slightly overtaken by events given the very Holtham Report”. helpful Statement made by my noble and learned The noble Lord, Lord Browne, who is a man of friend. I am concerned about the substance of what considerable ability—as we have discovered in the has been agreed in return for the legislative consent course of consideration of this Bill, as well as from his Motion. This amendment gives us a good opportunity previous work—has read the Holtham summary, and to discuss some of the issues arising from the legislative I expect that he is as unsure of the meaning of that consent agreement. We are told that the Scottish sentence as I am. What does it mean? Does it mean Parliament will pass the necessary legislative consent what we have just been discussing and, if so, why does today or this week. Perhaps my noble and learned it say, friend can help us on that. “changes in the Scottish Government’s budget”, 951 Scotland Bill[LORDS] Scotland Bill 952

[LORD FORSYTH OF DRUMLEAN] between the legislature, the Executive and the judiciary. as opposed to changes in the Scottish Government’s It is right that the EU should impose that condition income? The Scottish Government’s budget is what Alex upon the application, and we are going to discuss it Salmond dreams up one day and promises the Scottish and what needs to be done to change the arrangements people, but it has no relation whatever to the Scottish in the country’s constitution. Government’s income, as people are about to discover. It occurs to me now that the situation in Scotland, which has come about because of a series of events, is 5.45 pm presided over by someone chosen by the First Minister, The second paragraph says: and that there are committees—my noble friend Lord “The Government will work together with the Scottish Government McConnell knows more about this than any of us, and over coming months and years to give operational effect to the I know that the noble Lord, Lord Steel, has looked at powers including the block grant adjustment, in a fair and sustainable it carefully—which were supposed to be the checks on way and should reach agreement on all implementation issues”. legislation as it went through and to challenge and Is this a commitment not to reform Barnett, or to question what the Executive were doing, as indeed reform Barnett? It is very important that we should be they did until the most recent election in Scotland. told what the Government have committed themselves These committees have SNP majorities. With committees to in order to get a legislative consent Motion, which here, where there is a government majority in the they did not need to get to bring this Bill to the statute House of Commons among committee members, we book. I congratulate the Government because I had get a degree of independence and challenge to the tabled an amendment, which I withdrew earlier, indicating Executive. There is none of that in Scotland now. that the Scottish Government should have to pay for Even here in the Cabinet—if the situation is still the the cost of administration of the new income tax system. same, and I understand that it is—before agreement is I am delighted to see here that they have agreed to finally reached, a letter or memorandum is sent around that. However, it seems very important that we should the various departments concerned, agreement has to have clarity from the Government as to what has been be reached by the department and there is some consensus. agreed on this legislative consent Motion—and I accept That takes time and some thought. In Scotland now, that we have moved on since my amendment was tabled. all it needs is for one man to make a decision that The last question I have for my noble and learned something will happen and it is automatically agreed friend in respect of the legislative consent Motion is: by his Cabinet and Executive, which are beholden what exactly does this sentence— to him, and by his legislature, which is also beholden “The Government is open to considering what further powers to him. That is not good for democracy. It would not might be devolved after a referendum on independence”— be acceptable if an independent Scotland applied for mean? Would that, for example, include giving them membership of the European Union, which is another powers to decide the thresholds for income tax purposes? reason that could rule it out. That situation is very Making an open-ended commitment of this kind without worrying and something that we have not really addressed specifying it is bizarre, especially in the context of a in this Committee but should have done at some point. Bill which delivers extraordinary additional powers Apropos this concern, I said jokingly in a tweet that no one seems to know about. Why have the yesterday—the noble Lord, Lord Forsyth, laughs, but Government agreed to talk about giving further powers, this is a modern form of communication and even when many of those further powers are already contained people of my age have to get used to it—that Scotland in the Bill? When we were discussing these matters might need a second Chamber, and I referred to it earlier in Committee, I was quite firmly and rightly mischievously, as I have done before, as a “House of told by the noble Lord, Lord Browne, and by my own Lairds”, which is just a name for it. I was not suggesting Front Bench that we have to concentrate on the key that the hereditary Peers from Scotland should be issue, which is whether Scotland wishes to remain part recalled for that purpose—certainly not the noble of the United Kingdom. Opening up this question of Earl, Lord Erroll, for example, but that is another further powers without saying what they are is a story. Interestingly, from a number of people on Twitter hostage to fortune. I beg to move. who do not normally agree with me I had a lot of agreement; they are genuinely worried that there is no Lord Foulkes of Cumnock: My Lords, I welcome check and balance on what is decided by the Scottish the fact that a legislative consent Motion has been Executive. This issue is worrying, and it is time that agreed. I also welcome its terms; I mentioned that those of us from Scotland who are concerned about earlier, and we may have the opportunity to discuss it Scottish democracy paid some attention to it. later on. However, I want to refer briefly to the very important point made by the noble Lord, Lord Forsyth, The Duke of Montrose: My Lords, I would like to almost as an aside in his introduction. It was about the probe a little further the question that my noble friend speed by which this legislative consent Motion was Lord Forsyth has raised about where we stand on agreed within the Scottish Executive. legislative consent Motions. I do not know if what I At the end of this week, I am going to one of the have will throw any more light on the topic but, as most newly independent countries to talk about its noble Lords will know, we have spent quite a long time request for accession to the European Union. The EU considering when a legislative consent Motion might has made it clear to that country that it will not get appear. I draw to your Lordships’ attention that there membership—I am sure that the noble Lord, Lord is enough evidence from what Ministers have told us Williamson, knows exactly what I am taking about—until that primary legislation does not require legislative it can show that there is a clear separation of powers consent. 953 Scotland Bill[21 MARCH 2012] Scotland Bill 954

I am sorry to see that the noble Lord, Lord Sewel, is It would appear that this concern over those inadequacies not in his place because much of what I have to talk is shared by the First Minister in so far as he pays about refers to what he told us in this House in 1998. attention to them. We are continually assailed in the He and others in the House will recall that in the Scottish press by the question of which country Scotland Committee stage of the Bill the question of an application should be compared with. Should it be Norway or of an Order in Council as being the route by which Iceland? It is not Iceland any more and it certainly is amendments to Schedule 5 could be achieved was not Ireland. Perhaps Belarus would be an appropriate discussed. It is just possible that some people’s recollections example of a northern European country that operates might, like mine, be a little hazy since most of this on the whim of its leader. However, that will be discussion took place at around 11 pm—something regarded as an insult to Mr Salmond. Such is his that we were beginning to get used to the other day. sensitivity and the thinness of his skin that if I were to There was a serious probing amendment, which said make such a suggestion, I do not know whether I that the power to use the Order in Council mechanism would get off a plane at Edinburgh Airport tomorrow should be removed in regard to Part I of Schedule 5. night, although I would be happy to have a go. The mechanism was insisted on by the Minister because We are also indebted to our new communicator—the it was the Government’s intention to make it a condition new electronic man behind me, my noble friend Lord of procedure that the Scottish Government had to Foulkes. I have heard it said that he has been called a agree to alterations to Schedule 5. Great emphasis was Twit. I do not think that is an unparliamentary word; placed on this, which was considered the unequivocal it may well be appropriate in this case. I have never virtue of the Privy Council process. However, the known the noble Lord, Lord Foulkes, to express himself Minister’s view was clearly that primary legislation did in anything like as few words as 140. I am sorry; I not require the agreement of the Scottish Parliament; meant to say 140 characters. I do not know whether this can be found in Hansard at col. 849 on 21 July. there is a sequential tweet here, but perhaps the relevant Therefore, the Scottish Parliament would officially material could be placed in the Library so that we have no say in any primary legislation. could see the Foulkes Twitter sequence. Here, today, we will be only too aware that on Coming back to the point, it would be helpful if the previous days the Committee has endeavoured to add Minister could give us some indication of the conversations amendments to the Bill that would bring in more that he had with the First Minister and how this detailed recommendations by the Calman commission concordat has been arrived at. If we can reach agreement and others. So far, all these efforts have been rejected on that matter so quickly, perhaps other problems can and many of the amendments at this stage appear to be dealt with in a similarly efficient, if not particularly aim to introduce them using the Privy Council route at democratic, way. a later stage. From the approach taken by the Labour Government before us, it seems that any or each of 6pm these Orders in Council will properly be subject to a legislative consent Motion from the Scottish Parliament, Lord Browne of Ladyton: My Lords, I support the which is different from the one that we are talking general tenor of this debate in so much as it encourages about today. As we have proceeded with this legislation, the noble and learned Lord to explain the Written a great deal has been made of the idea that we are Ministerial Statement more fully and how we will take looking for the completion of the Motion before we forward—if we are to do so—the agreement that has get on to the Bill. now emerged between the Scottish Government and It is important that the procedures that are required the coalition Government. It would appear that that should be absolutely clear. Since this is primary legislation, agreement has encouraged the Scottish Government it would appear—from applying the explanations that to do no more, according to the Statement as I read it, were offered to us—that the legislative consent Motion than to, is not strictly necessary for the Bill but would be for “table a Legislative Consent Memorandum recommending that the Scottish Parliament votes in support of the Bill on a further the statutory instruments to implement it. Could the Legislative Consent Motion for the Bill”. Minister tell the Committee whether this argument That sentence has been somewhat extravagantly for seeking some sort of agreement with the Scottish interpreted, perhaps for other purposes, by some of Parliament is just part of a concordat or is being my noble friends and other noble Lords. introduced for politeness, or whether some legislative measure has recently been introduced that requires its It is incumbent on us to pay appropriate respect to fulfilment? If not, is it not true that in hard legislative the Scottish Parliament, which will have to debate a terms the consent of the Scottish Parliament is not Motion. No doubt some members of that Parliament required? may disagree with the agreement that their Government have reached. How they vote will be a reflection of the way in which that Parliament operates, which seems to Lord O’Neill of Clackmannan: My Lords, at some stage copy our voting discipline substantially, from what I I think we were concerned that this might be a complete can see: that is, people often conform to the position waste of time if we were not going to get a legislative adopted by their party. I was amused by the idea that a consent Motion. Whether it was necessary was not the country that did not have a genuine separation between issue. It was a question of whether there was a nod of its Executive and its legislature would no longer qualify approval or acceptance from the Scottish Parliament. for membership of the European Union. Given that In our lengthy debate last Thursday, some of us our Executive seems to be part of our legislature, if we raised our concerns about what we considered to be were not already members of the European Union, we the inadequacies of the committee system in Scotland. might struggle to get membership of it on that criterion. 955 Scotland Bill[LORDS] Scotland Bill 956

[LORD BROWNE OF LADYTON] The next bullet point states that the Secretary of I approach this issue in this way because I have been State for Scotland and Scottish Ministers will produce on record repeatedly in this Committee as being confident between them, that the Scottish Parliament would pass a legislative “annual reports to the UK and Scottish Parliaments on the consent Motion. I am confident because it has already progress of transferring the tax and borrowing powers to the done it and because many significant Members of the Scottish Government”. Scottish Parliament have already voted for a legislative There must be some method of accountability envisaged consent Motion on most of what is before us in this in this deal that allows this Parliament to be assured Bill. To the extent that the Bill has been amended, it that the Bill we are passing in the context of the has been amended at their request. It therefore did not deal that has been struck will ensure that the Government seem consistent or politically likely that that Parliament are answerable for what they are doing in relation to would not pass a legislative consent Motion at some these issues. stage. I have said this before and I am not saying it I am content that we should continue with this now in the knowledge that an agreement has been debate provided we are given some explanation of reached. I have been confident that that would happen. how this process is to be carried out. I am happy to However, I have also said before, and I repeat, that as engage, time permitting, in any number of briefings far as I am concerned that has never been a condition outwith this Committee with Ministers, or with Members precedent for us getting on and dealing with this Bill. I of this House more broadly, so that they can explain have been prepared to entertain debate with noble how this process is to operate. I would also like to be Lords about what we need to do if there is no legislative assured that Members of the other place will get the consent Motion, although I have been confident that same briefing, because it is absolutely certain that they there would be one, and it seems that my confidence will get 15 minutes to debate all this and decide it when was not misplaced. it gets back to them. They may all be cut off in However, from my perspective of the politics of mid-sentence as they try to tease out what this means. Scotland and where we are at this challenging time, it I therefore encourage the noble and learned Lord to is important that we keep our word to the Scottish come to the Dispatch Box now, or at some stage over people and pass this Bill, which has its genesis in the next few hours, and explain how this is to be done. Calman and prior to that in the Scottish Parliament I have already said that I broadly welcome the other and all the devolution parties in Scotland. We should aspects of this agreement—the non-financial elements— proceed to offer these additional powers to the Scottish because I do not think that they represent the hollowing people through their Parliament. It would then be a out of the Bill that was suggested earlier. They are matter for the Scottish Parliament to decide whether comparatively small concessions. However, as my previous to accept them, and it would not be our responsibility, contributions to this debate, and those of my noble and certainly not the responsibility of an unelected and learned friend, have indicated, they are concessions Chamber of this Parliament, if it did not offer them. that we were encouraging the Government to implement As far as I am concerned, it has never been a in another way because we thought they went beyond condition precedent of completing this work that we the Calman recommendations, which we support. guarantee that there will be an LCM. However, it now Legislative consent Motion conditionality is less relevant appears that there will be one. At least to the extent to the Bill now than it ever was. In any event, it was that we can anticipate that the agreement that has never relevant to my support for it. However, we now been reached will persuade the Members of the Scottish have a much more complicated environment that has Parliament to vote for this LCM, I think we can work generated the possibility of that LCM. When the on the basis that there will be one. However, we need noble and learned Lord comes to the Dispatch Box to get more detail from the Government of what this now or at some stage within the next few hours, I urge deal that they have struck with the Scottish Parliament him to explain to us the implications of that much actually means. more complex environment. I have already said this afternoon that the Government should assure the House that Parliament will be provided Lord Wallace of Tankerness: My Lords, I am grateful with an adequate opportunity to scrutinise properly to my noble friend Lord Forsyth for his amendment. what amount to significant new details on the process He obviously had great prescience in tabling it because of the devolution of tax and borrowing powers. I do it has been debated today when a Written Ministerial not fully understand the relevant paragraphs in the Statement has been brought forward paving the way Written Ministerial Statement. We do not have much for a legislative consent Motion. As the noble Lord, time to get to grips with them, but we will never do so Lord Browne of Ladyton, made clear, that is what it if no one explains them to us. What exactly does the does—it paves the way for a legislative consent Motion, reference to the Holtham report mean? The noble and it will be a matter for the Scottish Parliament to Lord, Lord Forsyth, referred to the paragraph that determine whether to pass it. However, as the noble states: Lord, Lord Foulkes, indicated, he would be rather “The Government will work together with the Scottish surprised if the majority party in the Scottish Parliament Government over coming months and years to give operational did not take the lead from its leader. effect to the powers including the block grant adjustment, in a fair I was asked by the noble Lord, Lord O’Neill, for more and sustainable way”. details. I have not held any direct negotiations with the What does that mean? How will that agreement, when First Minister on these matters. My right honourable it is reached, be subject to parliamentary scrutiny here friend the Secretary of State has been primarily responsible in our Parliament? for the negotiations involving individual Scottish Ministers. 957 Scotland Bill[21 MARCH 2012] Scotland Bill 958

The Written Ministerial Statement sets out the agreement if I got it wrong. During the passage of the Scotland that has been reached and we should be happy to Bill through your Lordships’ House, the noble Lord, provide further details to facilitate debate on Report. I Lord Sewel, said that, had already indicated as much with regard to the Holtham “we would expect a convention to be established that Westminster proposals. Clearly, if other issues need to be raised, it would not normally legislate with regard to devolved matters in is only right that I should facilitate that debate. As I Scotland without the consent of the Scottish parliament”.—[Official think was acknowledged in our short debate before Report, 21/7/98; col. 791.] agreeing to go into Committee, a considerable amount It is a convention; it is not law. The words “not of hard work was done to ensure that that agreement normally” are there. An example occurred earlier this was concluded and, in turn, to ensure that that happened Session when the Scottish Parliament passed a legislative before today’s debate. consent Motion objecting to parts of the Welfare Reform Bill. The Scottish Parliament consented to It is difficult for me to make other arrangements some parts that were within devolved competence and while I am here on the Front Bench, but I am more rejected other parts that had implications for Scottish than willing—even at the conclusion of our discussions Ministers. The United Kingdom Government—probably this evening—to meet noble Lords to arrange for one of my noble friends from this Dispatch Box—moved briefings on paper, and perhaps to see what other amendments to excise those parts from the Welfare briefings between Members of your Lordships’ House Reform Bill. and relevant officials could be facilitated, so that when we come to Report or Third Reading, when there may 6.15 pm be a bit more time, your Lordships will be properly The statement made by the noble Lord, Lord Sewel, informed and briefed. has been supplemented in a devolution guidance note I certainly pick up the point made by the noble and is now in the Memorandum of Understanding Lord, Lord Browne, that Members of the House of with devolved Administrations. I have one here from Commons have more than a legitimate interest in November 2005, issued by the Department for these matters, because if this House chooses to pass Constitutional Affairs, which states: amendments—and the Government will be bringing “The convention applies when legislation makes provisions forward amendments to reflect some aspects of the specifically for a devolved purpose. It does not apply when agreement that require changes to the Bill—they will legislation deals with devolved matters only incidentally to, or also have to be considered in the House of Commons. consequentially upon, provision made in relation to a reserved I certainly want to facilitate such discussions as best I matter, although it is good practice to consult the Scottish Executive can and, if it is thought suitable—and it is not at a in these circumstances”. ridiculous hour, which I hope it will not be—I shall be There is an important distinction between a convention more than happy to meet anyone who wishes to have a and a Section 30 order. A number of different orders preliminary discussion at the end of our proceedings can be promulgated under the Scotland Act 1998. today about how those discussions might best be Indeed, there is a schedule with headings (a) to (j)— achieved. possibly more—that state the procedures and processes in respect of each order. I know that noble Lords have It has always been the Government’s intention to had debates in the Moses Room on Section 104 orders, secure a legislative consent Motion from the Scottish which very often relate to when the Scottish Parliament Parliament in favour of the Scotland Bill, and it goes is unable to give full expression to its legislative proposals without saying that we are pleased that we were able to because they may well have non-controversial implications do that in terms of changes to the Scotland Bill and for matters or bodies that are reserved. After working supporting non-legislative arrangements, and that the with the United Kingdom Government, it is possible to Scottish Government have also tabled a legislative bring forward an order that can then give full effect to consent Motion in support of the Bill. It includes such proposals. We recently considered such an order finance and non-finance changes. I believe that these with regard to social housing. There are a number of changes meet the tests that my right honourable friend examples. These are matters of law, and a Section 30 the Secretary of State indicated were important, and order is used to transfer or make changes to Schedule 4 by which this Government have set store, for any to the Scotland Act. Schedule 5 sets out the specific issues changes to the Bill package—namely, that they are that are reserved under that Act. A Section 30 order based on evidence, maintain the cross-party consensus requires the consent of the House of Commons, the that supports the Bill and will benefit Scotland without House of Lords and the Scottish Parliament. It is not detriment to the rest of the United Kingdom. We have a convention. If the Scottish Parliament withholds its gone further than in any other Bill in working between consent, a Section 30 order cannot pass. That is why it parties in Scotland and across the United Kingdom to has legal effect in a way that the Sewel convention does build on a cross-party consensus. We have carefully not. considered and—where appropriate and where the case has been properly made—we have taken on board The Earl of Caithness: My Lords, on that point, will the views of the Scottish Government and Scottish the Minister confirm that my noble friend the Duke of Parliament. This has allowed an agreement to be reached. Montrose was right to say that we cannot amend a My noble friend asked about the legislative consent Section 30 order here and that we have to either reject Motion, and the position was also reflected in the or accept it? contribution of my noble friend the Duke of Montrose. It may be useful if I say something about legislative Lord Wallace Tankerness: It is generally the case consent Motions in the absence of the noble Lord, for all orders that they cannot be amended. However, Lord Sewel, who I am sure would be able to correct me in earlier exchanges, the noble Lord, Lord Foulkes, 959 Scotland Bill[LORDS] Scotland Bill 960

[LORD WALLACE OF SALTAIRE] Lord Wallace of Tankerness: I do not think that asked whether there might even be a draft order. that is the way to transfer backwards. That may be Actually, it was the noble Lord, Lord Sewel. My apologies possible; I will have to check. It may be possible to go —it seemed to happen so recently. He raised the in the opposite direction. I am trying to think whether possibility of a draft Section 30 order. I indicated then that has ever actually happened. When the Arts and that if it related to the important issue of the referendum, Humanities Research Council was established, because we could take the opportunity of the debates that we it had not hitherto existed and because under the are, I hope, about to have to get the reflections of your scheme of devolution it was a devolved as opposed to Lordships on these matters. a reserved matter, an order had to be brought forward to establish that it would be a UK parliamentary responsibility. I am not sure that it was a Section 30 The Duke of Montrose: I am most grateful to my order. The noble Lord, Lord Sutherland, may have noble and learned friend for giving way. I am very been involved at the time. I certainly was, because I interested in where he has gone with his explanations. took the order through the Scottish Parliament. It has been an interesting discovery that Section 30 orders can be applied to devolved and non-devolved The important point is that it changes the devolution matters. Section 30 orders can be applied within the settlement. It changes the boundaries between devolved legislation. If it is something included in an Act—this and reserved powers. That is why it requires the consent is the first time that we have had a new Bill since the of both Houses of Parliament and the Scottish Parliament 1998 Act—it seems that the legislation does not require before it proceeds to Her Majesty in Council. the consent of the Scottish Parliament. This is the first I hope that I have shown that there is a distinction time that the devolution guidance note has been before between that and a legislative consent Motion, which the Committee. It would be interesting to see the whole is by its nature a convention. On the basis of those of the devolution guidance notes so that the Committee explanations and the undertakings that I have given to is aware of what the noble and learned Lord has to try to identify ways in which we can discuss the matter deal with in his negotiations with the Scottish Parliament. in more detail— We are getting closer to where the legislative terms lie. Lord Kerr of Kinlochard: My Lords, the noble Lord, Lord Wallace of Tankerness: I am grateful to my Lord Forsyth of Drumlean, raised one other question noble friend for giving me an opportunity to make in his reading of the Statement. I am very grateful to things clear. I rather suspect that the devolution guidance the Minister for his Statement, and I feel much less was placed in the Library by the previous Administration, pernickety about it than the Committee as a whole but if there is any need to ensure that it is taken from seems to do. It is a good thing that this agreement has the back shelf and made more readily accessible, I am been reached. A number of demands from the north sure we will see to that. have been dropped. A number of changes that the Perhaps it is my fault for not having explained it, or Government propose to make seem to me perfectly perhaps we have just glibly used the expression “a earnestful. The reason why it has been possible to Section 30 order” without explaining it. A Section 30 negotiate this successfully is that everyone has decided order is not about dealing with things which are that it is de minimis—it really does not change the currently devolved. The purpose of a Section 30 order price of fish. That is the trouble with the Bill: it does is to transfer issues which are currently reserved under not attack the real issues. Schedule 5 and devolve them to the Scottish Parliament. The noble Lord, Lord Forsyth, referred to the Perhaps one of the best examples of that since the sentence in the Statement in which we are told: Scottish Parliament was established in 1999 is the “The Government is open to considering what further powers devolution of railways. There was extensive discussion might be devolved after a referendum on independence”. and negotiation between the Scottish Executive and The noble Lord asked how we should construe that the United Kingdom Government. A Section 30 order sentence. Scots are good at punctuation. There is no was brought forward to bring about the devolution of punctuation in that sentence. That, I take it, means, railways to Scotland. Railways were not previously “We are open to considering now, today”. It does not devolved. There were limits on that, as the noble Lord, mean, “We are open to considering what further powers Lord McConnell, will no doubt remember. Section 30 might be devolved, after a referendum”. The Minister orders do not deal with matters that are already devolved. had a good Scottish education, so I am convinced that They are to confer on the Scottish Parliament devolved I am reading this correctly. That seems to me to be a responsibility and powers in areas that are currently move from the porridge oats speech, where I think the reserved. That is why it is important that they have to punctuation included a comma. Am I right? Am I be passed by both Houses, as well as asking the reading this correctly? Scottish Parliament, “Do you want these powers?”. Secondly, what mode are we in? The porridge oats man is very muscular. He is very active. The Duke of Montrose: My noble and learned “The Government is open to considering”, friend is describing what has been the habit of the use suggests to me a rather passive role. The Government of Section 30 orders, but Section 30 states: will sit there and if anyone turns up with an idea, they “Her Majesty may by Order in Council make any modifications may look at it. Are we active or passive? I think that of Schedule 4 or 5 which She considers necessary or expedient”. the porridge oats position, the punctuated position, is Therefore, it can be used for both devolved and reserved impossible—after there has been a referendum, then matters. we will consider what more you might get. Scots have 961 Scotland Bill[21 MARCH 2012] Scotland Bill 962 long memories. It will not work; that is an unsustainable deciding whether you are going to do more planting. I position. Therefore, I am very glad to see no punctuation hope that my noble friend will not be tempted to in that statement. Are we actively to define what expand the meaning of that sentence. further measure of devolution would be feasible, or are we to leave it to others to devise devo-maxes, devo- 6.30 pm pluses and devo this, that and the other? I feel that I am still unclear about the Government’s policy on there is a strong case in logic for being clear before an legislative consent Motions. I am not clear whether independence referendum about what would be on they regard them as something which they are prepared offer after it. to override, but I am clear why the Government do not want to say what they think about that. I entirely agree Lord Wallace of Tankerness: They may be very with my noble and learned friend’s analysis of the role unfair on themselves but officials say, “Blame officials of Section 30. I am fascinated, as we move on to the for poor punctuation”. I think I will reserve my position debate on referenda, to hear from him precisely what on that. I apologise for forgetting to pick up the point he is going to do if he cannot get the Scottish Parliament raised by my noble friend. As he and the noble Lord, to consent to a Section 30 proposal that contains the Lord Kerr, correctly identify, the Statement says that conditions which have been clearly laid out by the the Government will consider further devolution after Prime Minister on a referendum. a referendum on independence. I believe that that is In order that we can get to that issue as quickly as consistent with the position set out by the Prime possible, I beg leave to withdraw my amendment. Minister and with the evolution of devolution to date. It has involved a careful assessment of the evidence. Amendment 85 withdrawn. One could go back to the constitutional convention or the Calman commission. It has involved consideration Amendments 85A and 86 not moved. of its implications across the United Kingdom—it is important to remember that any devolution has Amendment 87 implications for other parts of our United Kingdom—and it has generally proceeded with cross-party agreement. Moved by Lord Foulkes of Cumnock Those are all essential ingredients, perhaps not of 87: Clause 43, page 33, line 2, at end insert— porridge oats but for moving forward. The Government “( ) Notwithstanding the other provisions of this section, no are committed to continuing to consider amendments provision of this Act may come into force until a referendum has to the devolution settlement on that basis. My party been held in accordance with section (Referendum about Scottish and others are doing their own thinking on what that independence).” might be, but, as we have seen to date, any substantial progress has been made on the basis of cross-party Lord Foulkes of Cumnock: My Lords, we now agreement. That is important. come—at last, some noble Lords may be saying—to I make one further point for clarification. My noble what I understand is the first of two substantial debates friend the Duke of Montrose is right: the word “modify” on the major question of this Bill. It is the one we have means to decrease or extend the subject matter of been waiting for with great anticipation, holding off Schedule 5, and I am advised that the order which I until the report of the consultation has been published, took through the Scottish Parliament with regard to on the referendum. I am not going to manage to do it the Arts and Humanities Research Council was indeed in 140 words, let alone 140 characters. Although I can a Section 30 order that added something to Schedule 5. say to my noble friend Lord O’Neill that whole stories, whole sagas, can be written in 140 characters. I will give him just one: Heart of Midlothian two, Hibernian Lord Forsyth of Drumlean: My Lords, we have had nil. That describes 90 wonderful minutes last Sunday an interesting debate. To rescue the Minister, I think which I am sure he would wish to forget. that paragraph 3 is headed, However, let us get on to the substantive issue of “Further devolution in the future”, the evening. We are talking about the future not just of which qualifies the sentence, Scotland, but of the whole of the United Kingdom. “The Government is open to considering what further powers What happens to Scotland in an independence referendum might be devolved after a referendum on independence”. will have a huge effect on the whole of the United I think that it clearly means that it is after the referendum. Kingdom, some of the detail of which has not yet I noticed that my noble friend did not answer my been examined. We have started discussing and debating question when I asked what he could be thinking of, them at last—they are principally some of the effects given the scope and nature of the Bill. As I get older, I on Scotland. However, the Joint Committee on the get more and more interested in gardening. One thing National Security Strategy, for example, only recently that I have learnt is that it is a big mistake to pull started to discuss some of the security implications of plants up and move them before they have had a an independent Scotland, in relation to the independent chance to settle and put down roots. It seems rather deterrent, membership of NATO, and a whole range odd that we are discussing a Bill where the tax proposals of other things. There would be huge implications for will not come into effect until 2015-16. The noble the whole of the United Kingdom if Scotland was no Lord, Lord Kerr, wants us to start thinking about longer a part of it. further devolution now. If you are going to plant this Any referendum, or referenda, should be organised prickly sort of bush, it is probably a good idea to see on an agreed basis that we all understand—that the whether any flowers are going to appear on it before Scottish Parliament and all of its Members understand; 963 Scotland Bill[LORDS] Scotland Bill 964

[LORD FOULKES OF CUMNOCK] Lord Foulkes of Cumnock: The noble Lord is that both Houses of this Parliament and all the Members anticipating something I am going to say. For once, understand; and that the Scottish people understand. exceptionally for me, I have written down the argument The UK consultative document is absolutely right in in some sort of order. I was going to say, before he saying that the three essential elements should be that interrupted me, that we should not rule out such an it must be legal, fair and decisive. First, it must be legal option if the circumstances made it desirable, or perhaps because some people will be predisposed to challenge made it the only acceptable option. That could be the basis of a referendum that is not carried out on a because the timing was contrived, in relation to the legal basis. I cannot say nothing will be open to proposed referendum by the Scottish Parliament, or challenge, but there must be a minimal likelihood of it because we would not succeed because we could not being challenged. That would be something that would get agreement in relation to a Section 30 order. That is be conducted if not by, then with, the authority of the not the preferred option; it is the fall-back position. United Kingdom Parliament. As I said earlier, the good thing about a referendum Secondly, it needs to be fair. That will ensure that organised by the United Kingdom Government would all of us will be satisfied that we have had the opportunity be that it would not only be decisive but it would be of putting our case to the Scottish people fairly.Questions legal and would not be open to challenge. about the timing of the referendum, and the question I now come to the other option, which is the to be asked—I will come back to that in a moment—are proposal of a Section 30 order. I think that is a good absolutely essential in relation to that. People who arrangement, a clever arrangement and an arrangement seek to choose the timing to make sure that they get a that will enable the Scottish Government to legislate maximum vote for separation are not giving the Scottish for a legal referendum. That would not be likely to be people the best opportunity to make a balanced judgment challenged, but it would have to be on an agreed basis. about the referendum. That is clearly the idea of That is why the question raised in our earlier debate waiting until 2014. The euphoria of the Commonwealth about whether the order would be amendable is important. Games, the Ryder Cup, and the anniversary of I think the Minister said that, in debating the order, he Bannockburn, will get Scots all fired up, even those would consider whether some opportunity might be from Shetland. I am sure the noble Lord, Lord Lamont, taken for amendments to be considered. I think that will find a way of coming to a specific amendment in my noble friend Lord Sewel suggested that we might relation to Orkney and Shetland as well. have a debate on a draft order. We may be crossing Of course the timing is also being suggested for 2014 bridges before we get to them, but that is a good because in the run-up to the United Kingdom election, suggestion that would enable us to table amendments. the SNP wants to try to polarise the debate between a In this context, the Secretary of State’s letter of certain kind of Scotland and a politically different United 20 March to my right honourable friend the Shadow Kingdom, and that would also be to its advantage. I Secretary of State, Margaret Curran, confirms, as did will come back to the question to be asked in a moment. the Minister earlier, that the consultation indicated Thirdly, it has to be decisive. It needs to be clear that clear support throughout Scotland for this proposal, the referendum will settle the issue. We know from the including from constitutional experts—the Minister experience of Quebec that it may not settle it forever, described them earlier—and knowledgeable organisations but it must be settled at least for the foreseeable future. such as the Law Society of Scotland, the Royal Society If there is a big enough majority against separation, of Edinburgh and the British Academy. The Scottish perhaps it will be forever or at least for our lifetimes, Government have now accepted this, but a Section 30 or for a generation. order still has to be agreed with Scottish Ministers. My Amendment 87 is to hold over provision of this That is where the difficulty might arise and where the Act until the referendum has taken place. The negotiations will be important, where, in the words of Amendment 88 tabled by the noble Lord, Lord Forsyth, the noble Lord, Lord Kerr, we will need to have had supported by another former Secretary of State the our porridge oats, or Scott’s Porage Oats. The Minister noble Lord, Lord Lang, and by the noble Earl, Lord is negotiating, so that they take a firm line. Caithness, would have the United Kingdom Government take action to exercise their undoubted right to call a Lord Reid of Cardowan: As regards what might and referendum by Order in Council. That is clearly might not be the ultimate outcome of such discussions, unacceptable to the Scottish Parliament. I would not let us be absolutely clear on one thing. If it is a question be averse to it, I have made that clear on a number of of Scotland remaining inside the United Kingdom or occasions. However, on the basis that I suggested leaving it, the Scottish people have the right to decide earlier—that this whole arrangement needs to be accepted such a question. However, a wider question about the by all the parties involved—we must think carefully changed nature of devolution within the union cannot before exercising that right. be a question just for the Scottish people or for the Scottish Parliament; it must be a question either for Lord Forsyth of Drumlean: Is the noble Lord saying the two Parliaments, or for the people of the United what I think he is saying? Is he saying that if we Kingdom. Will he make that clear? proceeded by using Section 30, and if the Scottish Parliament declined to give consent to that, we should Lord Foulkes of Cumnock: I completely agree with not have a referendum? Then the only alternative my noble friend. I think that needs to be made clear to would be for the Westminster Parliament to pass the Ministers. I was going to turn to the issue of one necessary legislation without support. He appears to question or two questions in a moment. We need to set be ruling that out. I hope he is not. targets for our Ministers when they are negotiating 965 Scotland Bill[21 MARCH 2012] Scotland Bill 966 and discussing with the Scottish Parliament. In Lord Foulkes of Cumnock: I am not sure that I fully Amendment 89, the noble Earl, Lord Caithness, talks agree with my noble friend on that. The referendums about the referendum being advisory or binding. There in 1979 and 1997 were both on the basis of the has been much discussion about whether any referendums Scottish people deciding. have been advisory or binding. I think some have been advisory but have been accepted as binding. One target that we need to set the Minister is to decide that Lord Reid of Cardowan: I was careful to say earlier both Parliaments should agree in advance to accept that anything other than leaving or staying in the the result of the referendum and follow it through union must be agreed either by both Parliaments or by with the necessary legislation as the will of the Scottish the people of the whole United Kingdom. The two people. instances which my noble friend mentioned were, of course, agreed by the United Kingdom Parliament before they went to a referendum. 6.45 pm That brings me to my Amendment 94C in this group. I want to deal with the wording of the question. Lord Foulkes of Cumnock: I had not appreciated Again, we need to set a target for our Ministers. The the qualification of being accepted by both Parliaments. wording of the question proposed by the Scottish If they are accepted by both Parliaments, that will Executive is loaded; it is contrived to get the maximum fulfil my requirements and belief. result for a yes vote: “Are you in favour of an independent I have an amendment which suggests a further Scotland?”. There is no indication what that means. It referendum on devolution—whether we should have is a kind of, “Are you in favour of motherhood and apple the status quo, devo-plus, devo-max or a multi-option pie?” question. I think it is the wrong way around. In referendum. I am not in favour of that now and I shall two of the amendments that I have tabled, I suggest not press that because that was going to be 35 days that the question should be the other way around: after independence. I confess that this amendment has “Do you want Scotland to remain part of the United Kingdom?”. not received universal support; in fact, it has not That is the key point. It changes the fact that those of received any support at all, which is probably why I am us who are in favour of the union would be on the yes not going to press it. side of the argument rather than the no side, which I A stronger reason is that we heard a very powerful think would be helpful. It may be that some compromise argument from both Front Benches that the 1997 can be worked out, but I certainly do not think that we referendum’s second question gives power to Parliament should accept the wording that the Scottish Executive to decide further devolution. If both Parliaments, as has put forward. I think that my suggested wording my noble friend Lord Reid has agreed, decide on would be preferable and should be the starting point further devolution, I do not think a referendum is of the negotiations. necessary. I turn to the point put to me by my noble friend Finally, there is the question of further devolution Lord Reid: should there be a second question in the which the noble Lord, Lord Kerr, raised in his interesting referendum? I think that, like the Government, we, as intervention about porridge oats and punctuation. I a Parliament, should make it clear that there should be agree—and now it seems the Prime Minister agrees—that no question on the referendum other than that which further devolution needs to be carefully considered. asks whether people are in favour or against separation—in We have got that in the Statement which the Secretary favour or against remaining part of the United Kingdom. of State made today. It should be carefully considered; I reiterate what I said to my noble friend Lord Reid: as a number of people have said, the devolution we that there should not be a second question because have at the moment—which is the devolution of the devolution and separation are two entirely different Calman commission, the further extension—has been concepts. agreed on an all-party basis, and on the basis of Once we decide, as I hope we will, to remain part of consensus and consultation. That should be the basis the United Kingdom—this relates to a point that was of any further extension of devolution. raised earlier—we need to consider how much devolution Both my own party, the Labour Party, and the there should be and whether the status quo is enough. Liberal Democrats, the Minister’s party, have commissions By then, the status quo will be this Bill. looking at this. In our debates on Thursday, we had an indication that already there is a degree of a mandate in relation to further fiscal devolution. Lord Reid of Cardowan: I entirely support the thrust of what my noble friend is saying, but it is important There are other issues in relation to the referendum, to recognise that any change in the relationship inside such as the role of the Electoral Commission, which I the United Kingdom must be put before the people of strongly support as being responsible for the conduct England, Wales and Northern Ireland as well as Scotland, of the referendum. Another is the franchise, because not just because it is a different concept, but because it while the Scottish Government propose to extend it to directly and materially affects them. The Scottish people 16 and 17 year-olds, I believe there should be no have the right, if they so wish, to leave the United unilateral reduction in the voting age just for one Kingdom, but if there is a desire for a relationship referendum. There are a number of other detailed which diminishes, for instance, the role of England, matters which we will come to in the later amendments. Wales and Northern Ireland in relation to Scotland We now have this agreement on the legislative consent within the United Kingdom, that is an entirely different Motion. We have substantial agreement that greater matter in practice as well as in concept. tax powers are acceptable, and that borrowing consent, 967 Scotland Bill[LORDS] Scotland Bill 968

[LORD FOULKES OF CUMNOCK] That is why on 10 January we published our which we are giving to the Scottish Parliament, is consultation paper on how to deliver a legal, fair and welcome, and that specific areas are now being devolved. decisive referendum. As I indicated earlier, officials Let us not make any mistake about it: this implementation are reviewing and analysing the responses and the of the Calman recommendations is a very substantial Government will publish a full report on the consultation, increase in the devolved powers of the Scottish Parliament. but perhaps I may give some early indications. We We should not be hiding that under a bushel. We received almost 3,000 responses. As I have already should be proclaiming it from the rooftops. Many of indicated, they came from members of the public in the advances have come from pressure from Labour Scotland and beyond, and there were contributions MPs and Labour Peers. It is something I am now from businesses, academics, political parties, trade proud to support fully. I beg to move. unions and many others that belong to civic Scotland. I believe this will, and does, provide a sound basis for Lord Wallace of Tankerness: My Lords, it was gauging Scottish opinion on the issues. thought at one stage that it might be helpful if I The Government’s central proposition in the indicated the Government’s position on these points. I consultation was, as has been said, that the referendum shall do that if the House thinks it would be helpful must be legal, fair and decisive. It is important that the and at the end I will respond to points made in the responses we received are analysed thoroughly, but I debate as well as to more specific points made by the can indicate some of the preliminary results on the key noble Lord, Lord Foulkes. issues. First, on legality, we must turn to the Scotland I also wish to thank noble Lords for helping to try Act 1998. The Act is clear. The Scottish Parliament to deal with these issues in two discrete groups. The cannot legislate on matters reserved to this Parliament, first group concerns how to legislate for a referendum; including, for instance, whether there should there be one question “the Union of the Kingdoms of Scotland and England”. or two on the ballot paper, the nature of a binding and Any Act of the Scottish Parliament is simply not law if advisory referendum, and whether it should be held it is outwith the competence of the Scottish Parliament. across the United Kingdom. Indeed, my noble friend An Act of the Scottish Parliament is outside legislative Lord Caithness has indicated that he wishes to discuss competence if it relates to reserved matters. The question implications for the Scotland Bill of Rockall and, of whether a provision relates to a reserved matter is a place dear to my heart, Orkney and Shetland. determined by reference to, Subsequently we will have a debate on one of the later “the purpose of the provision, having regard (among other things) groups on more practical but nevertheless very important to its effect in all the circumstances”. matters relating to the referendum, including the role We are quite clear that the Scottish Government’s of the Electoral Commission, eligibility to vote in a purpose in bringing forward a referendum is to secure referendum, and oversight of the referendum. independence. Their intended effect is to secure a I want to endorse what the noble Lord, Lord Foulkes, mandate for this to happen. Both purpose and effect said, when indicating that he supports the Government’s relate directly to the reserved matter of the Union. view of a referendum that is legal, fair and decisive. I Your Lordships’ Constitution Committee, in its report think he said that fairness must be fairness for all, and published last month, said: it is a very important point. We will certainly come to “An authoritative determination of the legal issues analysed in debates on the franchise and the role of the Electoral this chapter could be given only by the courts. Having considered Commission, but I would want to agree that the the matter in detail, we are of the clear view that the … analysis referendum must be conducted in a way that is deemed offered by the UK Government is correct. Without amendment, fair to all and that both sides are satisfied and can the Scotland Act 1998 confers no legislative power on the Scottish accept the outcome. There would be nothing worse Parliament to … authorise a referendum about independence”. than to have an outcome where one side or the other The committee welcomed the Government’s proposal was crying foul. In all our views, this means adhering that a Section 30 order be made to devolve power on to the well-established rules for referendums, so that the Scottish Parliament to legislate for a referendum neither one side nor the other can claim that there has on Scottish independence. been a false referendum. In our consultation document, we invited views on As I set out in my Oral Statement to your Lordships’ devolving powers using other legislation, including the House on 10 January, the Scottish National Party won current Scotland Bill, and for opinions on the possibility a significant victory in May 2011. In that election it of running the referendum directly from Westminster. campaigned for Scottish independence and its manifesto We have been clear throughout this process that it is included a pledge to hold a referendum on independence. the UK Government’s preference to work with the But winning an election victory is not sufficient. The Scottish Government to secure agreement on the way SNP did not explain how, in legal terms, it proposed forward. This is not a question about the mandates of to deliver a referendum either in its manifesto or in Scotland’s two Governments. We believe it is about the election campaign. Nor indeed did the Scottish empowering the people of Scotland to participate in a Government set out their legal view or their plans for referendum that is legal, and it is crucial that any many months. As has been highlighted before in your referendum is beyond legal challenge. To provide for Lordships’ House, this is not a matter that can be that legal referendum, we have set out our view that avoided. To legislate for a referendum on independence, the power to legislate for a referendum should be the Scottish Parliament must have the power to do so, devolved by the use of a Section 30 order agreed by and it is the Government’s clear view that the Scottish both Governments and subsequently put to, and agreed Parliament does not have that power. by, both Parliaments. 969 Scotland Bill[21 MARCH 2012] Scotland Bill 970

Initial analysis of the responses received demonstrates Lord Wallace of Tankerness: I will make this clear. that a significant majority agreed with that approach. If agreement could not be reached on a Section 30 That position was not simply supported by the volume order, and if we ensured that the matter was kept out of respondents, but by key academic experts and of the courts—which I hope would be the preference commentators including Professor Matt Qvortrup from of most if not all of us—we would need to consider Cranfield University, Professor Adam Tomkins of the what other options were open to us to provide a legal, University of Glasgow, Alan Trench of the University fair and decisive referendum. However, just as we were of Edinburgh, and representatives of organisations taken many times down the road of, “What if we such as the Law Society of Scotland, the Electoral cannot get a legislative consent Motion?”, which we Reform Society of Scotland, the Royal Society of have now seen is possible, we should make it clear that Edinburgh and the British Academy. we are confident that we can reach agreement. Noble Lords will also have noted that, soon after We reached agreement on the Scotland Bill when we published our consultation, the Scottish Government some said that it would be impossible. We reached published their own document on 25 January. In that agreement that Section 30 was the preferred route of document the Scottish Government also acknowledged both Governments to deliver a legal referendum. When the legal problem and accepted that a Section 30 order I made my Statement on 10 January, I could not have was the best way to remove doubts about the competence said that that would be the case. The Scottish Government of the Scottish Parliament. We welcome this endorsement, publicly stated that they share our view that the Electoral which the Secretary of State has discussed with the Commission should review the question. In their First Minister, and we look forward to continuing that consultation paper, they state that their preference is dialogue over the coming weeks. Against that background, for a single, direct question. Therefore, I am confident and indications that the Scottish Government want to that we can continue to reach agreement on all these reach agreement on these critical matters, I can confirm matters. The focus of our efforts must be on doing that that we will not be tabling any government amendments rather than on speculating hypothetically. Just as we on a referendum in the Scotland Bill. achieved agreement on the Scotland Bill, I believe that In addition to ensuring that the referendum is legal, further agreement will be possible. the Government have been clear that it should also be fair and decisive. That will be discussed when we debate the second group of amendments. Lord Reid of Cardowan: Perhaps I may clarify something in view of our earlier discussion. Apart from the process of Section 30, the substance will 7pm count as well. Will the noble and learned Lord be clear Lord Forsyth of Drumlean: When my noble and with the House that nothing in the Section 30 order learned friend says that the Government will not be arising from any discussions could validate changes in tabling any amendments to the Bill, he is ruling out relationships inside the United Kingdom that affect using the Bill as a vehicle to run a referendum. The the people of Scotland, and also those of England, Section 30 procedure requires the consent of the Scottish Wales and Northern Ireland, unless they are consulted Parliament. In the absence of that consent—perhaps either through their Parliament or Assembly or in a over the issue of whether there should be one question UK-wide referendum? This is an important point and or two—is he prepared to introduce legislation in the if the noble and learned Lord can clarify it, I will be next Session to provide for the referendum to be very happy. conducted along the lines that the Prime Minister set out in what the noble Lord described as his porridge oats speech? Lord Wallace of Tankerness: I entirely agree with the noble Lord that the point is important. He made an important distinction between a referendum on Lord Wallace of Tankerness: My Lords, my noble whether Scotland should remain part of the United friend was right to say that we do not intend to use the Kingdom, and one on whether Scotland should remain Bill as a vehicle for introducing provisions for the part of the United Kingdom but under a different referendum. I cannot be clearer than that. devolution settlement. He was right that it would have implications for other parts of the United Kingdom. Lord Forsyth of Drumlean: My noble and learned In 1997 the Government of whom he was a member friend was absolutely clear on the point about using came to power with a substantial mandate to introduce the Bill for the referendum. Everyone agrees that the devolution, not only for Scotland but for Wales and preference has always been to use the Section 30 Northern Ireland. Parliament respected that mandate power, which requires the agreement of the Scottish and passed the legislation. What we are doing in the Parliament. The Prime Minister stated clearly that Bill, although it brings changes, proceeds from the there would be a referendum; that there would be one manifestos of three parties. question; and that it would be run by the Electoral The noble Lord made that distinction, and it is the Commission. In the absence of agreement to that Government’s view that there should be a single question under Section 30, will the Government bring forward on independence and that any other question would in the next Session legislation to give effect to that? If be of a different character and therefore would not sit that is their position, I will be happy not to move my well if it came in the double-question referendum that amendments and not to waste any more time talking is sometimes suggested. The point that I was making about referenda. was that the Scottish Government, in their consultation 971 Scotland Bill[LORDS] Scotland Bill 972

[LORD WALLACE OF TANKERNESS] the statement of their choice. It would be consistent document, stated that their preference was for a question with the form of words used in the 1997 referendum. on independence. We should not lose sight of that, as It would also give everybody a chance to campaign for sometimes it is easy to do. their own positive choice, and for them to accept We believe that a referendum on independence afterwards that the result was fair and not skewed by should address the single most significant issue that who had the choice between yes and no in advance. people in Scotland will face for many generations. That is why in the consultation paper we proposed Lord Wallace of Tankerness: The noble Lord makes that there should be a single question on independence. an interesting and constructive proposal. I agree with the object of what he is proposing: it must be a Lord Reid of Cardowan: I am trying to be helpful to question that is fair and brooks no division or challenge the noble and learned Lord. I urge him not to place afterwards. This is perhaps relevant for the next group too much emphasis on the fact that the Scottish National of amendments on the role of the Electoral Commission. Party, which has independence as its core belief, expressed It has an important and tried and tested role to play in the view that it just wants a discussion and a vote on this, so perhaps this is an issue that we will return to on independence. If it had any other ideas about achieving the next group of amendments. a different strength or form of devolution, it certainly would not say this. Instead, it would point to an Lord Neill of Bladen: Someone said that the question, amorphous grouping in Scotland that supposedly or part of the question, might be, “Do you consider demanded it, and would concede it reluctantly—because the referendum to be legal?”. That would be a fatal of course it wants nothing less than independence. question to put. It is an extraordinarily difficult legal The politics and the substance of this are as important question, and there is no reason why the ordinary as the process. Would it be legal to proceed with an voter should have a view that is entitled to any weight alteration in the relationships of countries inside the on that. However, he will certainly be asked whether United Kingdom without the endorsement of the he wants to have one country or two, in the language United Kingdom Parliament or the people of those there is for that. To ask, “Do you think it would be countries? legal?”, would be a mistake.

Lord Wallace of Tankerness: My Lords, I was asked Lord Wallace of Tankerness: My Lords, I do not on one or two occasions whether it would be legal to think anyone is suggesting putting on the ballot paper, have a referendum on so-called devo-max without “Do you think it is legal?”. That would ultimately be a authority being conferred by this Parliament, either by matter for the courts to determine. The collective view a Section 30 order or by legislation on the Scottish is that we should find a way forward that, as best as Parliament. I was very clear that that, too, would anyone can, puts that question beyond doubt. That is change the relationship between Scotland and England why we recommend a Section 30 order as the best way and therefore it would be outwith the competence of of achieving that. the Scottish Parliament. I hope that that reassures the Let me make progress and allow others to contribute. noble Lord. Early analysis of the consultation responses shows As the noble Lord, Lord Reid, indicated, there are clear support for a referendum with a single question some who support approaches short of separation, on independence. We will take this support for our such as devo-max or devo-plus. We must be clear that position into discussions on the Section 30 order. We there has been no single, agreed definition of any of must be clear that the Scottish Government in their these terms. It is the Government’s firm view that we own consultation paper state that their preference is should not intertwine questions about the future balance for a single question on independence. of devolution in the United Kingdom with the question Finally, on the amendments that consider whether of Scotland’s place in the union. a referendum on independence should be held in Scotland or across the United Kingdom, I readily recognise that a decision for Scotland to leave the United Kingdom Lord McConnell of Glenscorrodale: On the issue of would have significant implications for those left in seeking agreement with the Scottish Government on the remainder of the United Kingdom. However, it the nature of the question to be posed on the ballot has already been articulated by the noble Lord, Lord paper, are the Government willing to look at my Reid, that the question of whether Scotland remains suggestion as a way not only of compromising between part of the UK or becomes independent is for the the two positions outlined by the United Kingdom people of Scotland alone to answer. and Scottish Governments but of producing a clearer answer so that people can understand with absolute The noble Lord, Lord Foulkes, said that we should clarity what they are voting for, and everyone afterwards set some targets. I hope that in this debate and the can accept and understand the result? The question on debate on the next group of amendments the Government the ballot paper should be posed not as a yes/no can get a flavour of what your Lordships believe are question, either for independence or for remaining the important targets and issues that we should strive within the union, but as a choice between two statements, to achieve in subsequent negotiations. the first being that Scotland should become an independent country and the second being that Scotland The Duke of Montrose: The Minister has been most should remain part of the United Kingdom, with helpful in explaining the Government’s position. There voters asked to put a cross on the ballot paper beside is one extra element that it would be interesting to 973 Scotland Bill[21 MARCH 2012] Scotland Bill 974 know about: would the Order in Council be specifically carried out in accordance with the provisions of the limited to one referendum? Multiple referendums would Parliamentary VotingSystem and Constituencies Act 2011 raise even more seriously the problem of the involvement and the draft must be laid before each House of of the other parts of the United Kingdom that the Parliament. The two further points in Amendment 94C noble Lord, Lord Reid, is worried about. seem to be extremely important. The timing must be made quite clear. It cannot be left ambiguous. The Lord Wallace of Tankerness: My Lords, I am quickly question must be equally explicit. I think that the trying to look at the draft Section 30 order that was question that the noble Lord, Lord Foulkes of Cumnock, attached to the consultation. It provides for just one has put forward in that amendment is excellent. referendum. We need to stick to these points, although I have this terrible feeling, based on a long period in public Lord Sutherland of Houndwood: May I ask the life, that when we come to negotiations—and there Minister a question? He may not want to answer it, will be negotiations in relation to this Order in Council— but clarification would be helpful. He referred to the gradually a little change will come in. It will not be Government’s belief in the importance of a single exactly as it started off, and by the time we get to the direct question. Is that a belief or a sticking point? end we may find that we are not carrying fully the There is a big difference between the two, and for some confidence of all the people of the United Kingdom. of us it would be a sticking point. That is the point Those four points are extremely important to me. raised by the noble Lords, Lord Reid and Lord Foulkes. They are negotiating points that we need to stick to. We have not yet solved the West Lothian question We have to be extremely careful that we do not just with the current legislation. This Bill will enhance that fade away into something that is much too mushy. We question in the minds of many people across the need to stick to the clear points that we have often whole of the UK. If we were to go further in some discussed here. They are extremely valuable and must undefined form of devo-max, the difficulties would be be carried into the Order in Council. greater, so I take him back to his point about fairness.

7.15 pm Lord Forsyth of Drumlean: I shall speak to my Amendment 88, which is part of this group. It may Lord Wallace of Tankerness: That is an important help save your Lordships a little time. I am grateful to question. If other noble Lords want to make their my noble friend for the statement that he has just contributions, I will reply to it and other points when made. As I see it, the position is quite clear: the winding up the debate. Government are not going to use this Bill as a vehicle. I tabled my amendment on 13 September, six months Lord Williamson of Horton: My Lords, I have sat ago. Since then, quite a lot has happened. I tabled it through the three and a half hours of this debate. because I thought we needed to resolve once and for Fortunately, Hansard records our words but not our all the question of whether Scotland should remain accents. If it did, it would have to have a little asterisk part of the United Kingdom, and I thought that the against mine because, apart from a very brief intervention First Minister would use his period in office to drive a by my noble friend Lord Neill, I am the only person with wedge between Scotland and the United Kingdom. a non-Scottish accent who has participated in the debate. Nothing that I have seen in the past six months has I shall make one point, but it will be quite short. I done anything other than to consolidate that view. It is thank the Minister for what he said in clarifying the therefore very important that we get this matter settled, Government’s position. It is extremely important. In that we concentrate on whether Scotland wishes to so far as conditions are going to be set for the referendum remain part of the United Kingdom, and that issues in the way in which it is presented in the Section 30 of devo-max and the rest are kept to one side while we Order in Council, it is extremely important that when do that. we finalise that position, we still carry the support, I entirely agree with the noble Lord, Lord Reid, trust and confidence of the people of the other countries who intervened twice while the noble Lord, Lord of the United Kingdom that the referendum will be Foulkes, was introducing his amendment to point out fairly drawn up and monitored. There is more than one that devo-max means creating a federal parliament party to this referendum. There are the Scottish people and an English parliament. He is absolutely right to and there are the people of the United Kingdom as a say that that would need to be subject to approval by whole, and confidence in the political process is important. the rest of the United Kingdom. For that reason, I will say briefly that although We are concentrating here on how to get the Scottish these issues are going to turn up—as we know now, in question resolved one way or the other. Seeing how the Section 30 Order in Council and not in this Bill—none the noble Lord, Lord Foulkes, has suddenly started the less the points that are raised in the amendment speaking to a script, I suspect that there is probably a moved by the noble Lord, Lord Foulkes, and that also degree of agreement between the Front Benches on arise in his Amendment 94C are extremely important. the way forward on this. I hope there is. The noble I emphasise that it is extremely important that we Lord, Lord Browne, shakes his head, but the noble stand by the points that are set out in these amendments. Lord, Lord Foulkes, was certainly speaking to a script, The first is that we are talking about whether Scotland although after three pages we returned to normal should become independent of the rest of the United service. I suspect that the three pages may very well Kingdom. There must be a clear question on the reflect the view of the Opposition, but we will hear ballot paper and in the order. The referendum must be from the noble Lord, Lord Browne, in due course. 975 Scotland Bill[LORDS] Scotland Bill 976

[LORD FORSYTH OF DRUMLEAN] Section 30 or the Government will have brought forward The point is that there is a consensus in this House a Bill that is taken through both Houses speedily and that we need to have a referendum; it needs to have delivers the opportunity for a decision to be made. I one question— would have preferred it if we had used this Bill to achieve that because we could have got on with it, but Lord Foulkes of Cumnock: I can let the noble Lord, given the Government’s Statement and the fact that Lord Forsyth, see my script and he will see that it is in we have to deal with all amendments by next Wednesday, my own handwriting and no one else’s. it is perfectly apparent that that is not going to happen. I am content not to press my amendment. Lord Forsyth of Drumlean: Yes, I just wondered who dictated it. I am sure it is the noble Lord’s own The Earl of Caithness: My Lords, I have put my work; it is just that it is such a change of position in name to the amendments tabled by the noble Lord, such a short time. We have discussed this ad nauseam Lord Foulkes, and my noble friend Lord Forsyth. As and it is perfectly clear that there is agreement in this my noble friend Lord Forsyth has just said, these House that there should be one question and that the amendments went down last year, long before the UK referendum should be conducted by the Electoral Government sent out their consultation paper, let Commission and no one else. alone the Scottish Government bothering to send out I like the question that is in the amendment moved theirs. by the noble Lord, Lord Foulkes, but I am perfectly content for that question to be determined by the I am not in the least bit fearful of a referendum in Electoral Commission. That is where we may end up. Scotland but I am worried about the consequences. The My preference would be for it to be decided by the break-up of the United Kingdom at the behest of a Government, but I can see how that would create minority, which might prejudice the majority, is something difficulties. The important point is that this whole of great concern. As the noble Lord, Lord Foulkes, process needs to be regulated by the Electoral Commission has said, it has huge implications for the rest of the and needs to be conducted under the rules that have United Kingdom. I am told that when Czechoslovakia been established in statute for the conduct of referenda. divided in 1992, some 30 treaties and 12,000 legal I am very happy not to move my amendment and not agreements were required. There is going to be a huge to spend any more time talking about referenda in the amount of work resulting from a decision to have an context of this Bill, because this Bill is clearly not independent Scotland, if that is the one that is taken. going to be used as the vehicle. I hear what noble Lords have been saying about this My noble and learned friend has been brilliant in being a matter for Scotland, and indeed it is, but it is his negotiations with Mr Alex Salmond, but I am not such a big matter that the referendum in Scotland absolutely persuaded that Mr Alex Salmond is going should then be followed by a referendum in the UK. to agree to a Section 30 procedure that meets all the There are huge implications for the rest of the UK; for criteria. The point that was made by the noble Lord, example, in Brussels, where our ability to get a blocking Lord Williamson, really needs to be taken into account. minority at the Council of Ministers will be altered We do not want any shilly-shallying or giving way on because the number of votes that we have will be reduced. these important points of substance. This is very I spoke about this in an earlier debate. It might very important. well threaten our permanent seat at the United Nations. Mr Salmond does not want to have a referendum There are a lot of reasons why it is so important on independence because he knows that he will lose, that the United Kingdom is kept together, which, if it and I am anxious that my noble and learned friend is broken by a minority, will have huge implications. may be optimistic about reaching agreement. However, That is why I have put forward my Amendment 89, given his track record, he may well be able to reach which says that the referendum in Scotland should be agreement: in which case, fine. If he is not able to reach advisory and could be implemented only if it was agreement, we will have to have a referendum Bill in agreed in the rest of the United Kingdom. We are the next Session of Parliament that delivers these sleepwalking into a whole lot of issues that have not things. I regret that, because unless there is agreement been discussed, the implications of which nobody between the Front Benches to take this through the fully understands, and which the vast majority of the House reasonably speedily we will have another six or United Kingdom will not have a say on. seven months of arguing about process, about the My Amendment 90 is an amendment to Amendment question and about who should run it, whereas I want 88 and says that if the vote in a referendum held in the debate to be about what happens to Scotland’s Scotland is for a separate Scotland—I do not say young people, the jobless, our businesses, our defence, “independent Scotland” because Scotland is about as people’s pensions, and our country as a United Kingdom. independent a country as you can get—but that if the If we are going to go down this track, I very much people of Orkney and Shetland vote to remain in the hope that the negotiations will not be particularly United Kingdom, they should be allowed to do so. extended. I believe in competition but, honestly, The obvious argument in favour of that is the competition between consultation papers is a bit rich. argument that has been expounded about Scotland, The Scottish Government’s consultation finishes in which I have just spoken about. Here we have a minority May. If this is the route that we are going to go down, of people in the United Kingdom saying “We want to let us hope that, at a reasonably early stage in the new become separate”or “We could want to become separate”. Session of Parliament, either we will have reached The rest of the United Kingdom has to accept that, as agreement with the Scottish Government on using the noble Lord, Lord Reid, thinks is right. I am saying 977 Scotland Bill[21 MARCH 2012] Scotland Bill 978 that if Orkney and Shetland decide that they want to Although my amendment proposes that Orkney stay in the United Kingdom—although that is not the and Shetland might be able to stay within the United only alternative for them—their wish should be granted. Kingdom should they so wish, there are other options. When this amendment was put down, it raised a lot There is outright Shetland independence and Shetland of concern from the usual rent-a-quote SNP MSPs exceptionalism, which the current Convenor of the who jumped up and down and said, “This is Westminster Shetland Islands Council has been promulgating. There dictating to us in the far north”. No it is not; it is is of course the opportunity to become a Crown merely giving a chance for democracy. There is a fear dependency. One further interesting fact is that, in in the far north of the centralisation that has taken January, the debate at the Althing was on the motion place in Edinburgh. that Shetland’s future lies in an independent Scotland. That was defeated. In that debate, the people of Shetland 7.30 pm clearly indicated that they did not wish to become part Let me declare quite an old family interest, which it of an independent Scotland. is important to declare for the record. The family links As this seems to be the only occasion on which we with Orkney and Shetland start in 1379 when at are going to be able to discuss referendums, will my Marstrand near Tønsberg in Norway, King Haakon noble and learned friend say what discussions he will VI invested and confirmed my ancestor Henry Sinclair have with Orkney and Shetland? Of course, there is no Roslin as Earl of Orkney and Lord of Shetland. He better person in this House in a position to hold those was required to defend Orkney and Shetland and, if discussions to make certain that their voices are heard, required, provide Norway with military support. It is recorded and, if necessary, taken into account in the important to remember that Norway controlled Orkney Section 30 order. That is hugely important because and Shetland. For the next 91 years, we served two there is, without question, a feeling in the Northern monarchs—the kings of Norway and the kings of Isles, as there is in the far north of Scotland, that the Scotland. In 1455, William Sinclair, the 3rd Earl of centralisation that has taken place since devolution Orkney was also created Earl of Caithness. has been to the detriment of the north. If one looks at After that, things started to change. In 1468, Orkney some of the recent articles, until recently, to say that and Shetland were pledged by King Christian I of one was more pro-Scottish than pro-British in Shetland Denmark, who was also King of Norway, as the led to a lot of condemnation because of its traditions, payment of the dowry of his daughter, Princess Margaret, its culture and the way in which it has felt separate and who was to marry King James III of Scotland. As a rather remote from the rest of the United Kingdom. result of that, we had to forfeit our title of Earl of If we cast our minds back only a year to the Orkney. In 1472, there was an Act of Parliament to Parliamentary Voting System and Constituencies Bill, annex Orkney and Shetland to the Scottish Crown. one will recall the argument forcefully made by my Scotland as we know it today did not become noble friend Lord Fowler to keep the Isle of Wight as Scotland until 1472. Looking at the timeline, one will one unit. It received a huge amount of support and he see that for about 600 years Orkney and Shetland were won his case. I am merely saying to my noble and under Norwegian or Scandinavian rule; for 235 years, learned friend, let Orkney and Shetland decide if they they were under Scottish rule; for 292 years, they have want to do their own thing and how they should be been under Westminster rule; and for 13 years, they allowed to do it when it comes to the referendum. have been under joint Westminster and Holyrood rule. My next amendment deals with the island of Rockall, Moving forward to the present day, the history that those uninhabited rocks out to the west of the United I have just outlined explains why in 1979 the people of Kingdom. I appreciate that in 1972 the Island of Orkney and Shetland voted against a referendum. In Rockall Act received its Royal Assent. At that time, it 1997, they voted very narrowly in favour but the was administratively made part of the isle of Harris, people of Orkney voted against the tax-raising powers. which was then part of Inverness-shire. But I shall go There is a totally different culture in the Northern back a little further than that to what happened when Isles, which has been evidenced by DNA tests that people landed on Rockall on 18 September 1955. A show that 60 per cent of the people of the Northern plaque was placed on Rockall on that day by people Isles are of Norse descent. That is not just on the male off HMS “Vidal”, which read: side but also the on female side. Further research in “By authority of Her Majesty Queen Elizabeth II, by the 2005 showed that as many women came over from Grace of God of the United Kingdom of Great Britain and Scandinavia to populate Orkney and Shetland as men. Northern Ireland and of her other realms and territories Queen, Head of the Commonwealth, Defender of the Faith, and in It was not a takeover bid by males; whole families accordance with Her Majesty’s instructions dated the 14th day of moved over, and settled and integrated into Orkney. September, 1955, a landing was effected this day upon this island Recently, there has been a slight change in the SNP of Rockall from HMS Vidal. The Union flag was hoisted and position. After six months of castigating me for what possession of the island was taken in the name of Her Majesty. my amendment proposed, in the past couple of days I [Signed] R H Connell, Captain, HMS Vidal”. have seen that the SNP has now admitted that Orkney and Shetland might be able to stay out of a separate Lord O’Neill of Clackmannan: Does the noble Earl Scotland should they vote against independence. In a anticipate there being a polling station on Rockall and recent interview, the SNP’s rural affairs spokesman, the like? We are dealing with matters of rather greater Angus MacNeil, admitted that if that was the case, significance than these flights of geographical fancy. part of the access to the isle, which belonged to the Orkney and Shetland basins, would stay with that The Earl of Caithness: My Lords, I do not anticipate country. a police station— 979 Scotland Bill[LORDS] Scotland Bill 980

Lord O’Neill of Clackmannan: A polling station. Lord Reid of Cardowan: I did not say that there had to be a referendum but, if there was a discussion about The Earl of Caithness: In fact, I do not anticipate a change in Scotland’s place inside the United Kingdom, people living there. But what is important are the oil either that had to be done by agreement between the exploration rights around Rockall, which have huge Parliaments or by a referendum that went wider. In implications. What I want to ask my noble and learned the case of the previous referendums, there was agreement friend is what takes preference. Is it Her Majesty’s within the UK Parliament and then the referendums instructions to raise a union flag and it is taken for the were held. The situation has now changed because union, or is it an Act of Parliament which gives there is a Parliament in Scotland and Assemblies in administrative rights so that the island of Rockall is Wales and Northern Ireland. One presupposes that a part of Scotland? That ought to be decided. I would decision will be taken on being inside or outside the say to the noble Lord, Lord O’Neill, that these are the union and the result of that decision meaning that sorts of issues that we need to be clear about when it Scotland should stay inside the union. I have no comes to the referendum. If oil is found within the principled objections to entering into discussions about waters of Rockall, let us have a clear mandate as to changing the nature of the relationship, but that has to who owns it and who is going to have responsibility be decided either by the peoples of the UK or by their for those areas, and indeed defend them against attack, representatives in the Parliaments. That is probably perhaps by terrorists, if the oil is developed. the only legal way to do it, and it is the only fair way. My last amendment in this group is to The first question, on whether Scotland wishes to Amendment 94C, another amendment tabled by the leave or stay, is one for the Scottish people on their noble Lord, Lord Foulkes of Cumnock. It concerns own, but the next question is one either for the peoples the second question about the fiscal autonomy of of the United Kingdom or the various representative Scotland, for which I know he did not get much bodies of those peoples. support. I want to ask my noble and learned friend The Earl of Mar and Kellie: My Lords, I am most what the situation would be should Scotland vote to grateful for that advice. Does the noble Lord, Lord become a separate country from the United Kingdom. Reid, believe that Jersey, Guernsey and the Isle of My amendment provides that Scotland should no Man have devo-max? longer be allowed to use the British pound sterling. I do not see how Scotland could use the same currency Lord Reid of Cardowan: I would be able to understand as England if it did not have a common Government. that if I knew what devo-max is. I am presupposing That has been the problem with the euro. My noble that if there is a subsequent discussion on the decision friend Lord Forsyth has argued strongly that we should to stay in the United Kingdom, some of it will be on not join the euro. Attempts have been made by many what the vote is actually about. I hate to add pigs and politicians, including the present Chief Secretary to pokes to porridge—enough euphemisms have been the Treasury, to get us to become part of the euro and used—but one of the problems with devo-max is that, much more integrated. However, the decision not to since it affects the relationship between the peoples of become part of the euro has clearly been vindicated. the United Kingdom, it would have to go to the In the event of Scotland becoming a separate country peoples of the United Kingdom or their elected and not having the same Government, it would be representatives. Also, at this stage no one knows what quite detrimental both to the remainder of the United devo-max, devo-plus or any of these topics other than Kingdom and to Scotland to have the same currency. staying in the UK or leaving the UK actually constitutes. It has not worked in the past and it will not work in the How on earth that is put to a referendum is beyond future. I would like my noble and learned friend to me, and therefore it reinforces the fact that there confirm that Scotland would not be allowed to use the should be a clear, fair and legal decision on one issue, British pound sterling. after which there may or may not be discussions That would not be something sensational for Scotland between the representatives of the various peoples to do because in the days of King David I, somewhere about changing that relationship. At that stage, between 1140 and 1150, the weights and measures and presumably, devo-max may represent what the islands the currency of Scotland were based by Act of Parliament the noble Earl referred to already have or it might refer in Caithness. It was decreed that there should be a to something entirely different. Part of the problem is common and even weight for the pondus Cathaniae, that at the moment we have no idea of what it refers to. so it would be quite simple for Scotland to go back to that. Lord Forsyth of Drumlean: My Lords, the difference is that Guernsey, Jersey and the Isle of Man do not 7.45 pm send Members of Parliament to the House of Commons. The Earl of Mar and Kellie: My Lords, I want to The Earl of Mar and Kellie: I suppose I should ask my noble and learned friend a question to which I continue to look for advice: did they? I also note that do not know the answer, so maybe he will be able to Jersey, Guernsey and the Isle of Man have almost help me. The noble Lord, Lord Reid of Cardowan, complete autonomy, including on foreign policy and talked about the need for a UK-wide referendum to the Treasury. The only thing they do not provide deal with issues such as devo-max. I could probably go overall is their own defence. along with him on that, but I recall that Jersey, Guernsey and the Isle of Man have a status which is equivalent Lord Lang of Monkton: My Lords, I intervene to devo-max, and I do not think we had a referendum briefly in the debate simply because Amendment 88, to let them get to where they are. tabled by my noble friend Lord Forsyth, also bears my 981 Scotland Bill[21 MARCH 2012] Scotland Bill 982 name. I begin with an apology because I have been in its views, as it might, and if large numbers of people detained away from the House all day and indeed had did not vote, that might not contribute to the decisiveness not expected to be able to get back in time for this of the outcome. I hope that that will be taken into debate. Therefore, I speak with some diffidence because account. I have only heard half of the wind-up made by my In earlier debates we also considered who should be noble and learned friend to the last debate. the electorate. There is an inherent unfairness in precluding This amendment was tabled when the United Kingdom from such a significant referendum Scots people who Government were taking no clear interest in what was are working abroad with no real property owned in going on in Scotland, when the First Minister was being Scotland. It is a difficult question to resolve but we given a completely free run, and when there was a would like to at least consider that the Government clear need for the Government to get a grip on this have addressed the issue. matter and represent the interests of the whole of the Many of these questions, no doubt, will be referred United Kingdom. That is what the amendment hopes to the Electoral Commission, as is appropriate, but to stimulate, and certainly there has been a lot of Parliament’s input into this is at least as important. progress since then. I wish that I had heard all that my A government agency should not have the final noble and learned friend was able to say this evening determination on whether or not what is being put but, from the reaction to it, I understand that quite a forward is acceptable on the grounds of it being fair lot of useful progress has been made. and decisive. I hope, consequently, that there will be an What seems absolutely necessary is that whatever iterative discussion in Parliament over the next few manoeuvring takes place involving a Section 30 order months about the process and the criteria to which the or whatever else may come along, we have to have a Minister has attached himself. They have been supported watertight situation in which the Scottish Executive by others but they are not necessarily as clear as they cannot manoeuvre to break away from the commitment need to be if we are to decide how this process is to be that we all now have to holding a referendum in concluded. Scotland, with clear wording that forces the issue on whether or not Scotland should remain part of the Lord Empey: My Lords, the noble Lord, Lord United Kingdom. That point has been effectively made Williamson of Horton, said that up until his contribution, by a number of speakers today. I particularly agree with the exception of a brief intervention by the noble with the comments made in the last debate by the Lord, Lord Neill of Bladen, no voice other than a noble Lords, Lord Williamson and Lord Reid. Scottish voice had been raised in the debate. I agree My reason for intervening now is to draw my noble entirely with the point made by the noble Lord, Lord and learned friend’s attention to what my noble friend Reid of Cardowan, that the Bill and the prospect of Lord Forsyth said when he indicated that he was independence for Scotland affects substantially everyone willing to withdraw his amendment but sought certain in the United Kingdom. clear and specific assurances and undertakings. He The noble Earl, Lord Caithness, made a point made the case clearly and I shall not attempt to repeat about Rockall which brought a response from the it or improve on the language he used. However, I urge noble Lord, Lord O’Neill, who is not in his place at my noble and learned friend to respond directly, clearly the moment. I remind the House that in the late 1980s and unambiguously to the request that he made. or early 1990s, a would-be politician in the Irish Republic changed his name by deed poll and ended up calling himself Dublin Bay Rockall Loftus. He went to place Lord Maclennan of Rogart: My Lords, at the conclusion an Irish flag on Rockall and promised that he would of this long debate, I thank my noble and learned visit the island every year to stake his claim. That friend for what he has contributed so far. gentleman has since passed away but the anecdote Events have moved rapidly in the past few days and illustrates the fact that others claim the island as a have made it extraordinarily difficult for the House to base. Of course, the concept of oil and natural gas also keep abreast of what is going on. However, my noble arose at that stage. The point is not quite as flippant as and learned friend has made it clear from the beginning some people think; in fact, it could be significant. that the referendum which is held will have to be legal, The implications for the rest of the United Kingdom fair and decisive. How does he intend to enable the are substantial but, sadly, there has been an obsession United Kingdom Parliament to satisfy itself that the with the personality of the First Minister in Scotland process is legal, fair and decisive and that the questions and we should get away from that. As the hymn writer being put to the electorate are legal, fair and decisive? said: There are many questions about fairness and “Time, like an ever-rolling stream, decisiveness in particular. My noble and learned friend Bears all its sons away”. has gone quite far towards satisfying us that there is We are thinking here of the long term, of the implications now a broad consensus on what is legal but, with a for generations and of the economic implications for Section 30 order, there is some difficulty in being the people of Scotland. certain as to how fairness and decisiveness might be However, there are implications for others. For achieved. I recall in earlier debates about referenda an instance, a large part of our energy supply comes issue about the proportion of the electorate that would through Scotland via pipelines and interconnectors. be required to reach a decisive conclusion. It is a There is the question, which we discussed last Friday, matter on which people will have differences of view of access to airports and their status. That is a huge and it is therefore important that we know what the issue for Scotland too, because obviously connectivity Government are proposing. If Scotland was to oscillate is vital to the Scottish economy. 983 Scotland Bill[LORDS] Scotland Bill 984

[LORD EMPEY] one has to be extremely careful what one says. The I hope that we can move the debate on to the key small print and, in this case, the punctuation can be issue: that is, what is in the best interests of Scotland? just as important. Of course, it is its decision, but let us also take into account that there are implications for the rest of us, some of which have been mentioned. The status of the Lord Neill of Bladen: Is the noble Lord, Lord United Kingdom would be drastically changed in Empey, contemplating circumstances where there would the event of Scotland leaving it. I tabled a Question to be referenda in other countries than Scotland? He said the Minister some time ago about what name we Parliaments, their representatives and the people would would give to Great Britain if Scotland was not part have to make up their own minds in their own countries. of it. The noble and learned Lord, with his great That was English people, the Welsh Assembly and so experience in these matters, answered by saying that he on. Supposing that these problems arise, did he envisage was not expecting such an event to take place. I hope by the phrase “another route” that there might be a that he is right. Nevertheless, these simple questions referendum in England, Wales and Northern Ireland? are left in the air. We have to go beyond the process and get down to the real issues. What is the economic Lord Empey: I hope that that would not be necessary. future for the people of Scotland? What are the I certainly believe that the best outcome is that Parliament implications for the rest of us? I hope the debate can itself, which is a combination of representatives from move on to those issues. all parts of the United Kingdom, should be where I strongly support the point made by the noble those decisions are made. The noble Lord, Lord Reid, Lord, Lord Reid of Cardowan. When we had the raised the possibility that, for whatever reason, that referendum in Northern Ireland there was a decision might not be possible. I find it hard to envisage by the United Kingdom to implement the results of circumstances where it would not be, but if Scotland’s the referendum, and that became the Northern Ireland relationship within the United Kingdom changed, Act 1988. Since then, Parliament has ratified a series whether as devo-max, devo-plus or whatever, and it of intergovernmental agreements that were politically was not possible for Parliament to agree on how that negotiated. At every stage in that instance, the Irish could be implemented, then under those circumstances Government, their Parliament and ours were involved. the rest of the United Kingdom should be consulted. Every part of the United Kingdom had a say in the Yet I find it hard to envisage circumstances where arrangements that we were permitted to enter into. Parliament cannot resolve that. That emphasises the point made by the noble Lord, Lord Reid. Yes, a decision on independence is for the Lord Reid of Cardowan: Perhaps I can help the people of Scotland. We all have an interest in anything noble Lord. I, too, have reservations about the fact other than that and should have a say in it through our that, if there was a discussion about some different representative Parliament. If that is not possible, there form of devolution, it would come to the UK Parliament is another route open to us. to decide. I have an inkling that if the effect of such discussions at some stage in the future was to effectively 8pm constitute a federal Britain, then Parliament might The point is well made that if you go beyond the well think that that was a constitutional issue of such basic, fundamental question of independence, you magnitude that the people should be consulted. I move into an entirely different area of activities and merely give that as a possibility. responsibilities where more than the people of Scotland are affected. As they are our own kith and kin, I Lord Neill of Bladen: An obvious difficulty arises sincerely hope that the people of Scotland do not go once you get into consulting constituents of other down that road but we have got to get on to the main countries—England, Wales and Northern Ireland—which issue of the debate—the rights, wrongs and benefits of is: in what order do you take the referendum? What it. We hope that the people of Scotland, who must be effect will it have if, we assume, in Scotland the referendum free to make their own decision, reach one that will is passed with acclaim but other countries, such as help strengthen the United Kingdom and not tear it England and Wales, say, “No, it is very damaging and apart. That would weaken all of us. We are stronger we are against it”? together than the sum of the individual parts. Ultimately, I hope that that is the direction that we travel in. Lord Reid of Cardowan: I hesitate to start discussing Finally, when the noble Lord, Lord Kerr, was in his another referendum when we have spent so long on place, he pointed out to the Minister that there was an this one. To try to take the hypothetical situation, absence of punctuation. I remind the Minister that a Scotland wishes to stay inside the United Kingdom speech was made some years ago by the noble Lord, and the Scottish Parliament or people wish to go on to Lord Brooke of Sutton Mandeville—he is not in his discuss further powers. The negotiations conclude with place—in which he said that Britain had, what is effectively a federal system in the United “no selfish strategic or economic interest in Northern Ireland”. Kingdom that affects Wales and Northern Ireland as The noble Marquess, Lord Lothian, who is also not in well as Scotland. Then, one option is for the British his place, proceeded to write a book about that sentence, Parliament to address that. Another might be, making the point that we in Northern Ireland took the hypothetically, to put it to all the peoples in the UK at wrong meaning from it because of the punctuation. the same time as a referendum on the constitutional That goes to show that when dealing with these matters settlement. The important point is that the first decision 985 Scotland Bill[21 MARCH 2012] Scotland Bill 986 has to be a simple one: “Do you want to stay inside the intervened upon or questioned by an undergraduate union, or be outside it as a separate nation state?”. who pointed out to her that his instructions, when he That is a decision for the Scottish people alone. appeared as a student at the university, were that you should never be in a position where you have to quote Lord Browne of Ladyton: My Lords, I hope that a text-book to support a legal proposition as that was noble Lords will forgive me if, in the interests of just bad law, and she was flummoxed by it. If she was attempting to be brief—I have tried this before and it beaten by an undergraduate at Glasgow University, has not worked—I do not make reference to their perhaps she should give up trying to make the argument. contributions to the debate in any great detail. I shall The Government appear to have won comprehensively also resist the temptation to go down many of the the argument on legality, and they also appear to have hypothetical routes or cul-de-sacs that have opened up done so on the argument that we have to have this in the course of the debate. I will try to concentrate on referendum as soon as practically possible. That is the nub of the issue. now being supported by growing evidence from those I do that principally because, as the noble Lord, in business and other walks of economic life in Scotland. Lord Forsyth, indicated in his opening remarks, there They suggest that evidence is now emerging that the is now a great degree of unanimity across the House uncertainty about Scotland’s future is starting to damage about where we are. It may have taken us much longer investment in Scotland, and consequently jobs and than it should to get here, and that may be because, as people’s incomes. the noble Lord, Lord Lang, pointed out, for a time it The Government appear to have comprehensively was not clear what lead the Government were to give won the argument about the question. I do not think on these issues. That is now much clearer. It may also there is any doubt that everybody is of the view that it be that we had, to a degree, a hangover from the past is best to have one clear question—so much so that the in the sense of the Scotland Bill, which I think we were Scottish Government were forced to concede that committed to seeing through. Managing all these things point in their own consultation document, at least as a together was challenging and difficult. I do not envy headline, although they did exactly what my noble the noble and learned Lord and his colleagues in the friend Lord Reid of Cardowan suggests. They created Scotland Office having to work their way through this. a consultation with an amorphous group of people in I congratulate them on getting us to where we are to Scotland, to whom they said: “If you persuade us that date. There are still challenges ahead and some of we need to go further and have another question, we those have been identified in this debate. Given that will reluctantly concede to that but our position is that there is a significant degree of unity and unanimity there should be one question”. I will come back to the across the Committee on how we should approach this issue of the question. I am not in a position to judge and the challenges that face the Government, it does between the competing questions that have been proposed not seem very fruitful to pick through all the possibilities. in our debate this evening, but there is a mechanism Apart from anything else, I know that that would just for working out the appropriate, fair question. We encourage Members of the Committee to have other should at least begin that process now, so that when ideas. They might want to make interventions and proposals are made to the Electoral Commission and to develop other lines. others who have to take responsibility for adjudicating I listened carefully to the Minister’s contributions to some degree on questions, they will be in a position this afternoon. I carefully read the Written Statement to do that. which his right honourable friend the Secretary of State for Scotland laid today and which was referred The Government appear to have comprehensively to in this Committee. From the degree to which the won the argument that the referendum ought to be run consultation has been reported either by the noble and if not by the Electoral Commission then at least learned Lord or in the Ministerial Statement, or from according to the rules that it sets and for it to be other pieces of information that are now allowed, we accountable to the Electoral Commission. I would seem to be able to come to some conclusions about prefer it to be run by the Electoral Commission. If I where the Government ought to be, and we can encourage have not covered all the bases relating to the issues of them to continue on this path in their ongoing discussions contention, then somebody should point that out to with the Scottish Government. me, but I think that is it. It appears that the Government laid out their stall, found support across Scotland and It appears that the Government have comprehensively won the argument comprehensively, and now are able won the argument about legality. I do not think there to say, “Not only do we know that we have won the is any question about that. I was privileged to be argument but here is the evidence in the response to present when the noble and learned Lord spoke at the consultation showing we have won it”. That puts length on this issue at Glasgow University. He was the Government in a strong position, but in negotiating persuasive then, and the consultation document is terms it puts them in a difficult position because it persuasive. Since then, the Scottish Government have does not leave them very much room for manoeuvre, tried to undermine that advice, but unsuccessfully—so but they should not have very much of that on these much so that the Deputy First Minister, Nicola Sturgeon, issues. went to the same location, ostensibly to deliver a competing lecture on the issue, and ended up avoiding I am inclining to the position that I have always the question altogether. I understand that during her been in about legislative consent Motions regarding speech on independence and its virtues, she referred to the Bill. It is that the Scottish Government, inevitably one text-book supporting the view that she and her and for political reasons, will have to come to that fellow Ministers held about legality, and that she was position too. As they have gone out and tried to 987 Scotland Bill[LORDS] Scotland Bill 988

[LORD BROWNE OF LADYTON] the right way to go. I have adopted some of them. The sustain arguments in other areas, they have found that noble Lord, Lord Forsyth, asked the Minister, “What increasingly difficult, and their credibility is being if there is no Section 30? Where does that leave you?”. undermined. I suspect that in the negotiations, which I The noble and learned Lord answered, “If agreement hope will not take too long, the Scottish Government cannot be reached, we need to consider other options”. will be brought to that position. I understand why that form of words is the most that he can give your Lordships. 8.15 pm Listening even more carefully to the noble and Lord Forsyth of Drumlean: Why? learned Lord, it now appears that we will not be using this Bill as a vehicle for legislating for a referendum in Lord Browne of Ladyton: The noble Lord, Lord Scotland, and I agree with that. This Bill is about Forsyth, asks me why. The simple answer is: because devolution, and it should remain about devolution. he is a government Minister. The noble Lord should We should not muddy its waters by using it for another know that, and I am sure that he was adept at giving purpose. Apart from that, a Section 30 order is the those sorts of answers himself when he was at the right way to go because it is an established mechanism Dispatch Box. for transferring the power to the Scottish Government. It is tried and tested, and it involves a level of buy-in Lord Forsyth of Drumlean: I never really felt much by the Scottish Government that should prevent them constrained by collective responsibility, as the noble complaining in future about what they have agreed to. Lord will recall. My noble friend Lord Deben is It may not, but at least it provides a political framework indicating that he agrees, which is a bit alarming. I where they can be held to account for the consequences thought that the noble Lord was going to say that the of the agreement and we can avoid all these arguments Minister could not say this because he did not want to about imposition. If we have a process that they have put a gun to the Scottish Government’s head, but it is to buy into to create this opportunity, which we all quite important that it is clearly understood that we now want to see, we can stop all this nonsense talk are determined to resolve this question and that we about diktats from London and imposition by have the lines that we have discussed. It is also clearly Westminster. They will have to buy into it. understood—and I understand where the noble Lord is coming from—that we would much prefer to do this Lord Foulkes of Cumnock: I can understand why on an agreed basis and for the Scottish Parliament to my noble friend says that using this Bill to discuss or legislate, but at the end of the day this is going to be legislate for a referendum might not have seemed done. appropriate. However, if the amendments had not been put down all those months ago by the noble Lord Browne of Ladyton: I am sure that, from the Lord, Lord Forsyth, and myself, and if the pressure point of view of the record and those who read it, it is had not been put on the Government, does my noble probably better that the noble Lord says this and is not friend think that we would have had two consultative contradicted from the Dispatch Box, rather than that documents? Does he think that we would have achieved those words be put into the mouth of a Minister. I do what we have achieved today? Is there not extra advantage not want to go too far down this road. in putting down amendments, even though at the end My point is that there are precious few options of the day they may have to be withdrawn? Does it not anyway. Without persuading, badgering or compelling achieve something in the end, and has something not the noble and learned Lord to go any further than the been achieved in relation to this? words that he wants to use, it is clear to me and, I think, to everyone who has heard this debate that the Lord Browne of Ladyton: I thank my noble friend options are limited. Whatever option the Government for his intervention, although I have no idea what the choose in future if that set of circumstances arises, answer is to the question that he asks. We get many there will be an opportunity for your Lordships’ House amendments that allow us to explore issues that are of to have a detailed debate on the way in which the less relevance and importance to the people of Scotland, referendum is conducted. but I certainly welcome amendments that allow us to That leaves us with the challenge of how we achieve explore issues that are important. Through their that debate if it is a Section 30 Order in Council. We amendments, my noble friend and the noble Lord, have been teasing out from the Government some Lord Forsyth, have been utterly diligent on this Bill. concessions regarding that with proposals that have They deserve a great degree of credit for the amount been made—one from my noble friend Lord Sewel of work that they have put into preparing amendments, and some from others—about iterations. However, it by which they have created opportunities for some would be helpful if the noble and learned Lord indicated, very good debates in Committee. They will be a quarry perhaps even repeating what he said before, that something for the future for many good arguments that can be will be done to structure a process that allows the put forward about the positive nature of the United content of the order to be debated at some length here Kingdom. and in the other place before it gets to the point where To go back to my point, the noble and learned Lord it is set in stone and has to be either accepted or says, “Not this Bill”, and I agree. He says that the preferred rejected and cannot be amended. I have so much faith option is a Section 30 Order in Council, and I agree. in the noble and learned Lord, from the years that I The consultation reveals some very good and compelling have known him, because of his reputation before I arguments in some of the responses about why that is knew him and from my dealings with him, that I know 989 Scotland Bill[21 MARCH 2012] Scotland Bill 990 he will do his best to deliver that. If he gives the House Consulting all the other members of the club about an undertaking that some process will be found, I will changing the rules, if that is what we choose to do in accept that and play my part in that process. future, will be a complicated and difficult process because there is a lot to be done if we enact the Bill. Lord Forsyth of Drumlean: This is all very sensible First of all, we have to work out the exact implications and I have no problem with any of it, but will the of what we have already devolved to the Scottish noble Lord say a bit about the timetable? How long Parliament. We have learnt a lot in this Committee will this process run for? I would be horrified if we about Clause 28, which is quite substantial devolution. found ourselves coming back here at the end of the We have to persuade those people who are good at year with this matter still not resolved. Does he think making up phrases to describe what they want and that this needs to be done by the Summer Recess? He what it means—they had their opportunity with Calman said earlier that it should not take too long. How long to come forward and explain what all that meant, and is took long? precious few of them appeared—and then find some mechanism beyond the separate party mechanisms of Lord Browne of Ladyton: Clearly it could be done finding an inclusive, all-party process of measuring by the Summer Recess, and that would be my preference. whether all this is in the best interests of Scotland and It would be contradictory to issue a consultation the rest of the United Kingdom. Then perhaps we can document and argue for the resolution of this issue as decide how we are going to ask for approval from the soon as reasonably practicable and then put practical people of the country for that deal if we come to some blocks on that being done because we cannot get recommendation. That, however, is a process for another through the process here. We in this Parliament have day; it cannot be done in the context of this Bill. all had experience of dealing with things in an emergency. I shall deal with the noble Earl’s other two amendments In the context of Northern Ireland, for example, in about the islands. My suspicion was that what lay order to maintain momentum in the peace process or behind those amendments was oil, which was perhaps to respond to circumstances, we have taken legislation doing a disservice to the noble Earl as I listened to him through each House in one day. So if there is a will explaining the history of the islands and his knowledge there is a way, and there ought to be a will because this of the island of Rockall and how it was claimed for is the most important question that the people of the United Kingdom. He was quite candid about the Scotland have ever been asked—or at least since 1707— issue towards the end of his remarks. I say to him that and, as we have heard repeatedly from noble Lords, it if that is the intention of any person in relation the has serious implications for other parts of the United Bill, that is not a game that people on these Benches Kingdom. People have lots of investment in this. The will play. The challenge that we face is to persuade the Government should treat this as a priority and find a people of Scotland to stay in the United Kingdom for way forward. We have stuck to a timetable that is good, positive future reasons. If we cannot meet that associated with the consultation that the Scottish challenge, I will be no part of telling the voters of Government have issued, and to respect them we must Scotland that if they vote for independence the UK observe that timetable. Beyond that, though, we need will take away their oil. Starting down that line would to move as quickly as possible. be utterly counterproductive. With regard to the noble Earl’s three or four amendments, I think we were all interested in the I must caution the noble Earl. Whatever the underlying history lesson that we had about the islands of Orkney motivation may be for these amendments—respecting and Shetland, the observations about Rockall and the wishes of the people of the high north with regard indeed the argument about a complementary referendum to the United Kingdom, or the history of the island of for the United Kingdom after the Scottish people have Rockall, which is much more chequered and less specific had their say, if they determine to leave the United than it first appeared—now that he has linked this Kingdom. Like other attempts to amend the Bill, the issue to oil, I ask him please not to repeat these complementary referendum falls down on the next arguments in Scotland, as they will damage our ability question, which is: if the Scottish people decide to to keep the union together. leave and the rest of the United Kingdom wants to keep them, how do you keep them in the United The Earl of Caithness: That was not my argument. I Kingdom? Unless you were going to ask that question, was responding to an intervention by the noble Lord, why would you hold the complementary referendum? Lord O’Neill. I did not bring up oil. That was not my I listened to my noble friend Lord Reid explaining the intention at all, particularly with regard to the Orkney necessity for dealing with these issues in series. Many and Shetland amendments. As for Rockall, I just of us who have been in this debate consistently had got wanted to know what the legal position is. to that point a while ago. I read in some of the responses to the consultation attempts to explain this 8.30 pm by analogy, but the best analogy that I have heard for this is that if you are a member of a club and you Lord Browne of Ladyton: I am glad to hear from the choose to leave, that is a decision for you, but if you noble Earl that that is the case. The legal position is are a member of a club and you want to change the that the island of Rockall would not be part of the rules, that is a decision for all the members of the club. United Kingdom if it were not so close to Scotland. If That seems to be common sense. The analogy belongs we break the relationship between Rockall and Scotland, to Sir Malcolm Rifkind, by the way; maybe he got it we will lose our basis in international law for claiming from someone else, but he said it to me and I thought, it in the first place. We should be very careful about “That’s exactly the position”. that. 991 Scotland Bill[LORDS] Scotland Bill 992

Lord Wallace of Tankerness: My Lords, I thank all the Scottish Parliament. If they choose to make a case noble Lords who have taken part in this very useful for formal constitutional recognition of their social, and informative debate. There are clearly issues that cultural and economic distinctiveness, I will certainly go to the core of the referendum issue and what shape listen with care and respect. The coalition Government a Section 30 order might take. Before I address those have a very soft spot for and pay great attention to the points, it might be helpful if I pick up some of the people of the northern isles. more specific points that were raised, not least in the Rockall is administered by the Western Isles Council amendments spoken to by my noble friend Lord Caithness. under the jurisdiction of Scots law. The amendment, In many respects, his amendments proceed on the which seeks to change the original Island of Rockall proposition that in the event of Scotland voting for Act 1972, could sow confusion. We do not believe that independence there should be a subsequent referendum any of the issues raised by the various approaches to of the whole United Kingdom to ratify it. I certainly the United Nations about the continental shelf in any take the view, which was expressed by the noble Lords, way change the United Kingdom’s ownership of Rockall. Lord Browne and Lord Reid, that, to use the words of However, we would possibly be in an anomalous position Sir Malcolm Rifkind—if it was he who coined them—“If if there was independence and the amendment went you want to leave the club, the other members shouldn’t through, since the Act would assert that Rockall was really stop you”. Therefore, it is not a tenable position no longer part of Scotland but it would be administered to suggest that if Scotland were to vote for independence, by a Scottish local authority. I am sure that is not what there should be a subsequent vote in the United Kingdom my noble friend intended but he has raised an important as a whole. In that sense, the subsequent vote of the issue. The United Kingdom Government are clear people of Orkney and Shetland and the position of that Scotland is stronger in the United Kingdom and Rockall would not arise. that the United Kingdom is stronger with Scotland in it. Although there is no one on Rockall to vote, we are That said, my noble friend has raised an important sure that it, too, will remain part of the United Kingdom. issue. He gave us the history of Orkney and Shetland’s association as part of Scotland and, subsequently, the I say to my noble friend Lord Mar and Kellie that United Kingdom, having previously belonged to the Jersey, Guernsey and the Isle of Man have a completely Danish kingdom. The Government fully acknowledge different constitutional history and relationship from the distinct community view of the people in the that of Orkney and Shetland and, indeed, Scotland. northern isles. This has been an important feature of The noble Lord, Lord Reid, pointed out that Jersey, previous debates on the Scottish constitutional position. Guernsey and the Isle of Man have never sent Members The famous Grimond amendment on the position of of Parliament to Westminster. Therefore, their the isles was taken through by my predecessor as MP constitutional position is somewhat different. for Orkney and Shetland, Jo Grimond. It led indirectly I have listened carefully to the points made in the to the establishment of the Montgomery committee wider and more general debate. I certainly found it by the late George Younger when he was Secretary of valuable to hear the different views expressed, although State to look at the position of the islands’ communities. there was considerable consensus among them. As I In the debates on the 1997 referendum, distinct issues have set out, the Government believe that it is right were raised on the position of Orkney and Shetland. that there should be a single-question referendum to When the Scottish Parliament was established, I was address Scotland’s place in the United Kingdom. We able to ensure through its Standing Orders that a have set this out in our consultation paper and have policy memorandum should address the implications sought views on it. The responses that we have received of policy for Scotland’s island communities. I also roundly support this position. Over the coming days recall that, in the 1987 general election, the Scottish and weeks, we will continue to assess in full the detailed National Party stood down in favour of a candidate arguments made in response to that consultation. from the Orkney and Shetland Movement, who stood on a platform of self-determination. The amendment of my noble friend Lord Forsyth seeks to provide a referendum on independence, to be Since this issue clearly attracts attention, consideration run by Westminster. It was supported by my noble and debate in the islands, we take as our starting point friends Lord Lang and Lord Caithness. I made it clear that we very much hope and believe that Scotland that we would not look to use the Bill to deal with a would not vote for independence and, therefore, that referendum. As we made clear on page 19 of our the position would not arise. For those eligible to vote consultation document, the future of devolution and in Scottish Parliament elections in Orkney and Scotland, independence are two entirely separate constitutional our preference would be that that should be the franchise issues. The Bill is concerned with the former—the for the referendum. They will have the opportunity to future of devolution—not the latter. It would not be in express their views in the same way as those eligible to anyone’s interests to confuse the two issues. Amending vote elsewhere in Scotland. As such, we do not see the the Bill to deal with independence would risk that need at present to treat residents of any particular part confusion. of Scotland differently from those elsewhere in the country when it comes to the consequences of the As I have indicated, and as has been widely recognised, referendum result. our clear preference is that a Section 30 order, agreed between Governments and approved by both Parliaments, I can assure my noble friend and the Committee should be used to give the Scottish Parliament competence that I always listen carefully to the views of the people to hold a referendum on independence. As I stated in of Orkney and Shetland. I am in regular dialogue with my opening speech, that position is supported not those who represent them in both this Parliament and simply by the volume of responses to our consultation 993 Scotland Bill[21 MARCH 2012] Scotland Bill 994 but by a number of experts and key commentators, best way to deliver a fair, legal and decisive referendum. several of whom have already made their comments Today’s debate is an important part of seeking views public. Professor Adam Tomkins of the University of from this Chamber, just as the consultation paper Glasgow said: allowed a wider input. It has been suggested that a “The section 30 solution is both the neatest and the most draft should be made available before debates in this compelling solution available, not least because it offers to the Chamber on any Section 30 order. As I indicated Scottish Parliament the fullest possible say in the process”. earlier, these are important and interesting suggestions The Law Society of Scotland has said: that we will certainly consider further. I know that the “The Society is of the view that the making of such an Order noble Lord, Lord Browne, understands that I cannot should remove doubt as to the question of legislative competence make any commitment on what will happen. However, and for that reason it may be desirable that an Order be made”. I am sympathetic to the concept of identifying a The response of CBI Scotland also makes that point. means by which there can be further consideration, The Scottish Government themselves have accepted and indeed further accountability, on the part of Ministers that a Section 30 order is the best way to remove what who are negotiating these matters. We all have an they acknowledge are doubts about the competence of interest in these matters and a part to play. It might be the Scottish Parliament to legislate for a referendum useful to engage with others in opposition and our on independence. With that weight of academic and colleagues in government to try to identify how best legal support, support that goes much wider than that we might achieve that. and the support expressed in your Lordships’ House, we are confident that we will reach an agreement with Lord Deben: I thank my noble and learned friend the Scottish Government on a Section 30 order. for giving way but does he accept that this is also very I shall pick up some of the points that were made in important for those of us who are not Scottish, and dealing with this issue. The noble Lord, Lord Neill of for the nation as a whole? We must feel that this Bladen, asked how we would determine a referendum decision, which will be made by the Scottish Parliament, on federalism across the United Kingdom if different is fair. I am not saying that we should have a say in it parts produced different outcomes. The noble Lord, but we should understand the system. I hope he will Lord Reid, answered that point very effectively. The ensure that the English, Welsh and Northern Irish are debate demonstrates why we need a clear referendum fully informed of the care with which this measure is on a single question about independence. There should being taken forward because there is a distinction be one question in a legal, fair and decisive referendum between this decision and any decision that may be to settle this matter before we turn to consideration of made subsequently on further devolution. The comments any further changes to devolution across the United of the noble Lord, Lord Reid, on that are very important. Kingdom. However, we must make sure that the whole of the My noble friend Lord Maclennan raised the question United Kingdom recognises that this process is fair, of the referendum, the importance of the question not just to the Scottish people but to the whole of the that is asked and the use of the Electoral Commission. United Kingdom. As set out in this Government’s consultation paper, our view is that any referendum held in the United Lord Wallace of Tankerness: I have considerable Kingdom would be subject to normal rules on sympathy and support for what my noble friend says. I referendums as set out in the Political Parties, Elections think that the noble Lord, Lord Williamson, was the and Referendums Act 2000. The commission would first Peer to express a view on this matter who did not have responsibility for overseeing the conduct and speak with a Scottish accent, and the noble Lord, regulation of the referendum independently of the Lord Empey, also contributed to the debate. I am Government. Since the Electoral Commission was certainly acutely conscious—the Government are also created, it has overseen three referendums, which have acutely conscious of this fact—that although a referendum followed the framework of the 2000 Act, and no on independence is a matter for the people of Scotland minimum turnout or threshold has been raised. My to decide, nevertheless that process impacts on other noble friend referred to the question to be asked and parts of the United Kingdom. I believe that this is a the noble Lord, Lord Foulkes, suggested that it might two-way process. I believe that Scotland is better off as be loaded. On the wording of the question, again it is part of the United Kingdom. I also believe that the our view that any question for a referendum on United Kingdom is better off with Scotland being independence should be subject to the same rigour part of it. Therefore, other parts of the United Kingdom and the same rules as a question in any other referendum. have a legitimate interest in this matter. A Section 30 It is the Government’s view that the Electoral Commission order would have to come before your Lordships’ should fulfil the same role in reviewing the question as House, and indeed the House of Commons, for approval set out in Section 104 of the Political Parties, Elections by the Parliament of the United Kingdom. and Referendums Act. My noble friend Lord Maclennan also asked—I Lord Maclennan of Rogart: I am most grateful to think that the noble Lord, Lord Browne, reiterated my noble and learned friend for giving way. However, this but we are all interested in this—how this Parliament it would not be attractive if the Section 30 order, as a can continue to play a role in ensuring the content of result of a process of negotiation with the Scottish any Section 30 order before it is formally put, and in Government, had been decided and then presented to ensuring that any question is fair, legal and decisive. Parliament. This is not a treaty for which we are We have made clear our view that a Section 30 order seeking ratification; it is a legislative process. Although agreed between Governments and Parliaments is the I entirely accept all the arguments that have been 995 Scotland Bill[LORDS] Scotland Bill 996

[LORD MACLENNAN OF ROGART] as having strings attached. We are not attaching strings. forward in favour of the Section 30 process, I think We are seeking provisions, such as in any other referendum, this United Kingdom Parliament will feel that it is that ensures that it is delivered successfully, and where representative of the country as a whole and would all sides agree that it has been a success and a decisive want to feed into the process of getting the thing right referendum. The manifesto commitment of the Scottish so that it is not seen as a divisive issue which we have National Party was to have a referendum on independence, to pull down after the event. not devo-max. Therefore, if we say that we support a single question, we are actually seeking to give legal 8.45 pm substance, a legal basis, for something that that party put in its manifesto. That is why our position is very Lord Wallace of Tankerness: I hear what my noble strong as we go forward in seeking to achieve a Section 30 friend says and the force with which he says it. I order. suggested that we might try to identify a way in which we can engage without finding ourselves in a position where a negotiation takes place in public. As regards Lord Forsyth of Drumlean: I do not want to prolong the point made by the noble Lord, Lord Sutherland, I this. My question was: is the Minister saying to us, in do not think he would expect hands to be declared in pursuing his Section 30 route, that his position will any negotiations. Nevertheless, I do not want to be remain the same—that there is no flexibility on these party to any mushy outcome, as I think was suggested central issues of a single question and the role of the by the noble Lord, Lord Williamson. We have been Electoral Commission? given a very clear steer by your Lordships’ House, not least by the noble Lord, Lord Williamson, as regards Lord Wallace of Tankerness: There has been what things are important. considerable agreement between the two Governments on the role of the Electoral Commission, which is Lord Forsyth of Drumlean: My Lords— vital. I do not believe that we would get a fair, legal and decisive referendum if we did not involve the Electoral Commission. A signal as to why I believe Lord Wallace of Tankerness: I hope that I may that we can reach an agreement is that already, since I finish this point and then I will certainly give way. The made a Statement on 10 January, the Scottish Government noble Lord, Lord Williamson, said that there should have come a long way and acknowledged the position be a clear question on independence. I hope that I have of the Electoral Commission. made that clear. He indicated that each House of Parliament should be involved in that, and a Section 30 I hope that I have tried to express clearly what the order certainly delivers that. He talked about the Government believe are the key issues on this matter, timing. We may come back to that when we discuss the without saying— next group of amendments but the Government have certainly made it clear that they would prefer a referendum Lord Maclennan of Rogart: I am grateful to my to take place sooner rather than later. These are important noble and learned friend. Will he leave it to the Electoral points which strengthen our position in any negotiation Commission to decide, in pursuance of this goal of as they are genuinely supported across parties and decisiveness, that a majority of one vote would be those attached to no parties in your Lordships’ House. decisive, or does he accept, particularly as regards the Cunningham amendment in the past, that Parliament Lord Forsyth of Drumlean: I am finding it difficult ought to discuss that issue before it is put to the to understand what there is to negotiate about if we Electoral Commission? are to have one question and the Electoral Commission is going to run the process. I can see that there might Lord Wallace of Tankerness: I indicated that we are be flexibility on timing, which I do not regard as very not generally disposed to supporting the idea of a important. However, I share the anxiety expressed by threshold. My noble friend mentioned the Cunningham my noble friend Lord Maclennan, that you cannot amendment, which related to a classic example of a negotiate on these central principles. The worry is that referendum that many of us did not consider, at the we shall end up with a fudge which we will not be able end of the day, to be fair. Heaven forbid that we should to amend because of the process. If my noble friend is ever find ourselves in a position whereby, after a saying, “Look, we’ve got the message; we are committed referendum on independence, 30 years later one side to”—the point was made to my noble friend Lord or the other cries “foul”—with some justification. Lang—“a single question: the role of the Electoral That is why the oversight of the Electoral Commission Commission; and we are not going to move on that, is very important. and it will be part of the Section 30 order”, all of us The noble Lord, Lord Browne, and my noble friend will be a bit less nervous. Lord Forsyth raised a point about timing to which I should like to respond. I was asked what the timetable Lord Wallace of Tankerness: I tried to note down a would be. We should press on with this matter very phrase that my noble friend used: “We are determined early indeed. We should be pressing for early engagement to resolve this question”. We are determined to resolve with the Scottish Government immediately after the this question. The noble Lord, Lord Browne, said that close of their consultation. There have already been there was little room for manoeuvre. The Scottish preliminary discussions between my right honourable Government have tried to describe the issues that we friend the Secretary of State and the First Minister— have set out to ensure a legal, fair and decisive referendum indeed, the Prime Minister met the First Minister. 997 Scotland Bill[21 MARCH 2012] Scotland Bill 998

I am sure that they will receive representations. If the 9.10 pm Scottish Ministers think that independence is such a wonderful thing, why do they want a delay in getting Amendment 87A not moved. it? This is a matter on which we should seek to make substantive and early progress to allow their referendum Clause 43 agreed. to conclude. I will take one further intervention before I make Clause 44 agreed. my final point in response to the noble Lord, Lord Empey, and my noble friend Lord Forsyth. Amendments 88 to 90 not moved.

Lord McConnell of Glenscorrodale: I thank the Minister for giving way. On the specific of timing, in Amendment 90A (In substitution for Amendment 25) response to the comment of the noble Lord, Lord Tabled by Lord Foulkes of Cumnock Forsyth, that the timing perhaps does not matter as much as the issue of the Electoral Commission and 90A: Before Clause 10, insert the following new Clause— the other issues we have been discussing, we should be “Taxes and excise duties cautious. It seems to me, with the Scottish unemployment (1) In Part 2 of Schedule 5 to the 1998 Act, in section A1 rate now higher than in the rest of the United Kingdom (fiscal, economic and monetary policy) omit “taxes and excise duties”. and Scottish growth now below that of the rest of the (2) The Scottish Government shall pay funds to the Government United Kingdom, there is a degree of urgency about to cover a proportion of the costs incurred as a result of policies resolving this uncertainty. I hope that the Government made under reserved matters. will not de-prioritise the timing of the referendum in (3) This section shall only come into effect if it is approved by a majority of people voting in a referendum on the provisions order to secure agreement on the other issues. Timing held in accordance with Schedule (Referendums under this Act).” the referendum in advance of some date nearly three years away is vital if Scotland is going to get the growth and jobs that it badly needs. Lord Foulkes of Cumnock: My Lords, in view of the excellent progress we are making not only in these proceedings but behind the scenes, and also the work Lord Wallace of Tankerness: The noble Lord makes that has been done by the Minister, I shall not move an important point, which was reflected in some of this amendment. the responses to the consultation, not least from SSE. My noble friend Lord Forsyth and the noble Lord, Lord Empey, made the point that we want the debate Amendment 90A not moved. to move on to the substance of independence, a point also made by my noble friend Lord Caithness when he Amendment 91 raised the question of the currency. Those are questions that the Scottish Government ought to be addressing. Moved by Lord Foulkes of Cumnock I entirely agree. It is important that we get the process 91: Before Clause 10, insert the following new Clause— resolved, and resolved swiftly, but it is equally important “Referendum about Scottish independence that we get on to the substantive debate about the (1) Her Majesty may by Order in Council, on the advice of the benefits to Scotland from remaining part of the United Prime Minister, cause a referendum to be held throughout Scotland Kingdom, part of the most successful union of nations, about whether Scotland should become independent of the rest certainly in modern times, and possibly for even longer. of the United Kingdom. As noble Lords will be aware, my right honourable (2) Such a referendum can only be held within 24 months of friend the Secretary of State has raised six questions the day on which this Act is passed. with the Scottish Government to which we still await (3) The question that is to appear on the ballot paper is— answers. Many others, including Members of your Do you want Scotland to remain part of the United Lordships’ House, have raised other questions. I am Kingdom? confident that when we get to the substance of the (4) For further provision about a referendum held by virtue of referendum debate, we can expose the weaknesses in subsection (1), Schedule (Referendums under this Act) applies. the independence argument and do so on a positive (5) An Order in Council under this section may not be made footing by showing what is really positive about Scotland unless a draft of the statutory instrument containing the Order remaining part of the United Kingdom. On that basis, has been laid before, and approved by a resolution of, each House I invite the noble Lord to withdraw his amendment. of Parliament.”

Lord Foulkes of Cumnock: MyLords,wehavean Lord Foulkes of Cumnock: My Lords, we have excellent debate. We have had a very helpful reply had a good debate on the whole issue of a referendum. from the Minister. We have another debate looming. I However, there are one or two important amendments therefore immediately beg leave to withdraw my in this grouping that I think we should deal with very amendment. briefly. The first is in relation to the Electoral Commission, Amendment 87 withdrawn. which we dealt with earlier on. The noble Lord, Lord Steel, who explained to me that he was not going to be able 8.55 pm to be here, has raised this issue as well. It is very important that the Electoral Commission determines Sitting suspended. this, and not the body that has been set up by the Scottish 999 Scotland Bill[LORDS] Scotland Bill 1000

[LORD FOULKES OF CUMNOCK] came from the noble Lord, Lord McConnell, himself Government. The Electoral Commission has the a former First Minister of Scotland, as he has a great experience, it has the authority and the respect. Questions deal of knowledge about this. I think that is a very in relation to the actual wording of the question on interesting suggestion, which I hope the Minister will the ballot paper, the amount of finance and the control feed into the discussions that are taking place. If the of financial expenditure and the conduct of the Scottish Parliament or Scottish Executive suggests referendum should be left to the Electoral Commission. one question and we are sticking to another one, perhaps The second point relates to the franchise. As I said there could be agreement on two counterbalancing in the earlier debate, it would be entirely wrong to questions—questions that have different outcomes—for change the franchise for this one referendum, just which people could vote positively. In other words, no because the First Minister of Scotland thinks it would one would vote negatively; everyone would vote positively help him to get the right result. So we should stick to for their option. I think that is a very good suggestion. the arrangement that it is people over the age of The fact that these things have been suggested 18 who are able to vote. shows, as I hope my noble friend agrees, the value of There is an interesting amendment by my noble these debates, the value of Committee stage and the friend Lady Taylor of Bolton which, if I understand value of the House of Lords. Earlier we were talking fully, suggests that Scots who are now resident in about tweets, and I have been getting tweets asking England but who were born in Scotland and still have what right I have, as someone who is not elected, to an interest should also have the vote. She is one of make any comments on this. I can understand the those concerned and one of the more famous Scots politer ones that raise that question, notwithstanding residing in England, a supporter of Motherwell Football the fact that I was an elected representative for many club no less. There is a very credible argument for that years. One of the answers is that debates in this place, point of view. I am not sure I agree with it exactly, but as we have had today and previously, can come up we certainly deserve to hear it. with very useful suggestions which can move things forward in a very positive way. I beg to move. There is also an amendment in relation to Scottish nationality in the name of the noble Lord, Lord Selsdon, who does not appear to be in this place at Amendment 92 had been withdrawn from the Marshalled moment. If he were, I am sure he would make a very List. entertaining and interesting contribution to that amendment. I want to raise the West Lothian question Amendment 93(to Amendment 91) with the Minister. The noble Lord, Lord Selsdon, has Moved by Lord Steel of Aikwood arrived so we look forward to hearing him in relation to his amendment. On the West Lothian question, a 93: Before Clause 10, line 14, at end insert “and the Scottish committee has been set up by the Government to look Parliament. at whether MPs from Scotland, Wales and Northern ( ) Such a referendum must be administered by the Electoral Ireland should vote on purely English matters in the Commission.” House of Commons. I contacted the committee to seek to give evidence and I was told that it is not Lord Steel of Aikwood: My Lords, I think this taking evidence. That seems very strange, given that it amendment has been overtaken by events. The Minister is an integral part of the whole constitutional debate has made it clear that the referendum will be administered that is currently taking place and given that it has by the Electoral Commission and, therefore, there is some knock-on relevance to the point that we are no need for me to labour the point. That is very dealing with. Perhaps the Minister could persuade the important. The First Minister of Scotland still has to committee that it would be wise to consider evidence. recognise one thing: as he has a particular objective in mind in holding the referendum, he is not the right 9.15 pm person to declare what the question should be. Any member of the public would accept that that proposition Lord Watson of Invergowrie: Before my noble friend is correct. You cannot say, “The people must determine moves his amendment, I wonder whether he would this, but I will tell them how to determine it”. In my comment on the very interesting proposal made by the Amendment 93 to the noble Lord’s Amendment 91, I noble Lord, Lord McConnell, earlier this evening have suggested that it should be by agreement and that when he suggested that two questions be posed, so the Scottish Parliament should be consulted and be avoiding a yes or no answer on the ballot paper. party to how the question is drafted. I recall that in the 1997 referendum the words were “I Equally, I disagree with the noble Lord—although agree that there should be a Scottish Parliament” or “I I think a moment ago he almost resiled from certain do not agree that there should be a Scottish Parliament”, wording—that we should lay down the question. I and that there was the same in respect of the tax-varying missed the earlier debate for which I apologise, but the powers. Would my noble friend like to comment on noble Lord, Lord St John, and I had a longstanding that as a possible wording, which we all accept is very appointment with the Prime Minister of Zimbabwe, important, as it would avoid a straight yes or no Mr Morgan Tsvangirai. If you think we have problems answer to a question? in our coalition, you should hear his. I missed the substantive debate on the referendum earlier. Lord Foulkes of Cumnock: My noble friend is a I think it is also important that the people of former Member of the Scottish Parliament, as I am, Scotland are beginning to get scunnered—if I may use and I thought it was very interesting that the suggestion a good Scottish word—by the endless argument from 1001 Scotland Bill[21 MARCH 2012] Scotland Bill 1002 politicians, academics and economists about the process of being Lord Selsdon, which is actually registered in and what might or might not happen if Scotland Scotland. I am also a Scottish Baronet. But on the became independent. This cannot go on for another business of one’s past and the Scottish relationship, I three years. It is ridiculous. ask: who is a Scot, and where or what is a Scot? Therefore the part of the amendment that I support As noble Lords know, 5 million Scots live in Scotland, is the suggestion that the time should be now. If not 400,000 or more live in England, and 40 million around immediately, then certainly as soon as possible, we the world. If we are to move towards having a referendum, should get this issue out of the way. As soon as we get I for one would like to be able to vote for the first time clear of the independence referendum, we can start, as in my life—because by accident of birth, I have never the Prime Minister has said, serious discussion about had a vote—in a referendum. I have reason to believe how we can add to the devolution package, and that is there are many others in the world who will claim they very sensible. are Scots who would like to be consulted in one form We have got the Electoral Commission in the frame, or another. This is why I tabled my amendment on so there is no need to press that. Choosing the question Burns Night, and it was well received by many of the should also be a matter for the Electoral Commission, Burns associations. and I agree with the noble Lord, Lord McConnell, It is a very difficult matter. If we do not consult, who has made this point before, that rather than many people who are not in Scotland will feel that having a yes or no and putting some people in a they have been ignored. My amendment draws attention negative position, there should be two propositions to us. In this House, by accident or by recent legislation, from which people choose either to remain in the we are deemed to be resident, ordinarily resident and United Kingdom or to go independent. domiciled in the United Kingdom. What happens to If that is done, and done quickly, then we can get us if the referendum goes through and there is devolution? this issue out of the way and the Scottish Government Are we still domiciled in the United Kingdom? Domiciled should concentrate on what they were elected to do, is an interesting concept. As an ex-banker, I know that which is to deal with the issues affecting Scotland at there is no way I can be anything other than domiciled the moment: bad housing, unemployment, and the in Scotland. The reason is that, as your Lordships need for more investment in industry. These are the know, you take the domicile of your father at birth, things people want. They do not want three years of which is your domicile of origin. Unless you physically argument about a referendum. They want to see a and emotionally make a move to change that domicile Government tackling the issues, both in Scotland by to a domicile of choice, your domicile remains your the Scottish Government, and in the United Kingdom domicile of origin. It passes through the male line if by the UK Government. The sooner we get back to you do not change it. Therefore, there could be more that realistic level of politics, the better. people outside Scotland who have the right to vote than there are in Scotland. The Earl of Caithness: My Lords, my Amendment I personally am hooked there—line and sinker. I 94E takes what my noble friend Lord Steel said a little have not got rid of any property in Scotland. You have bit further, and asks that the Electoral Commission set to cut off all your links and sell your properties and the question. It is quite clear that nothing the UK perhaps resign from your clubs. I have the advantage Government propose is going to be accepted by the or disadvantage of having a lair. When you reach the Scottish Government, and nothing that the Scottish age of 50, you receive from some smart Writer to the Government propose will be accepted by the UK Signet a brown envelope containing your lair certificate. Government. I did not know that a lair was a plot. I did not know Why not cut the politicians out? Let us ask the also that as my family is international—my great Electoral Commission not only to set the questions grandfather was Provost of Edinburgh and my great- but to arrange all the counting, transferring the number great-grandfather was the first Lord Mayor of Melbourne; of votes into a proper result that is based, exactly the my family fled Scotland to earn some money and were same way the referendums were in 1979 and 1997, on the biggest coal people in Canada, so I am spread and each local authority area, rather than just Scotland. twisted across the world—I have two lairs, although We would know that there would be a clear question—or there is only one of me. Furthermore, the McEacharn questions, if we go down the route proposed by the family has a mausoleum in Galloway. When I visited noble Lord, Lord McConnell—but also that each area it, I was asked to make a contribution, although the voted and how they voted, and that it was a fair stipend was originally drawn up at the turn of the process. century. The agreement was that we would effectively Taken out of the hands of politicians, it will not allow them to keep the motor mower and gardening only be more acceptable to the people of Scotland, but equipment in there because there was plenty of room in view of our earlier discussions, I think it would be and we no longer had the same number of children as more acceptable to the rest of the UK, who would feel we had had in the past. that an independent authority is doing this rather than My point is simple. However the referendum is politicians. constructed, there should be some consultation among the Scottish community around the world to see what Lord Selsdon: My Lords, I will speak to Amendment 96, their views are. I believe that they are unionist at heart. if I am in order. I feel that because of my voice, I It is not difficult to identify them because through the should give a brief introduction. My name is Malcolm Burns society you can identify any Scot in the world, McEacharn Mitchell-Thomson, and I carry the burden including those who like to pretend that they are 1003 Scotland Bill[LORDS] Scotland Bill 1004

[LORD SELSDON] Armed Forces may be resident for several years in Scots. One of the greatest benefits of Scotland is that England, yet, I suggest, have a very significant interest relationship: the power and influence of Scots throughout in this. the world. It is a Foreign Office that costs them money. In the 1979 and 1997 elections, significant polls It is also a relationship that brings interchanges, and suggested that we should keep the register as simple as one is pleased at the moment that there are more possible. I have looked up how I voted and, to my students coming to Scotland than there were. The great relief, they were two of the rare occasions when dogs have not yet arrived, but more people wish to as Leader of the House of Commons I did not vote. come there. So Scotland can prosper. It is not a Whether that was subconsciously or consciously, I question of coastline or anything like that; it is a have no recollection, although I have been thinking question of attitude. Will the Government find some about it. A referendum on independence is different consultation formula that will allow us to consult from the referendums that we had on devolution all Scots worldwide? those years ago. This is a much more fundamental step. Listening to the whole of the debate today, that is one thing that everyone in this House agrees on. It is a Baroness Taylor of Bolton: My Lords, unlike the far more fundamental step than the referendums in noble Lord, Lord Selsdon, I do not have a lair. However, 1979 and 1997. I was born to a Scottish father in Motherwell, Scotland. My grandfather was the chairman of Motherwell I hope that we are not going to be told that because Labour Party, which may or may not be a of time or difficulties, this cannot be done. I would not recommendation. However, I have a Lancashire mother. suggest that we go as far as saying that anyone whose After several years in Scotland, my mother won the father was born in Scotland should be eligible. I would battle and we moved to Lancashire. Many families just go for people who were born in Scotland and are share that kind of situation. Many Scots have moved already on a parliamentary register somewhere in away for work, education, sporting or other reasons. I Britain. That would be feasible and would catch a tabled my amendment because I was concerned that, group of people who have made a great contribution as the noble Lord, Lord Selsdon, suggested, a lot of to Scottish life as well as to British life and people who people will feel that they are missing out on what they might well feel excluded. believe is their right to have a say in their heritage. In the debates on the two previous devolution referendums, there were, as my noble friend indicated, many references to football, which seems to come up 9.30 pm in all these debates. It was very interesting that in When I tabled this amendment, my noble friend 1979, it seemed to be the Kenny Dalglish question: Lord Foulkes was indiscreet enough to mention it to a would he be allowed a vote? In 1997, it was whether member of the press, and therefore there was a little Gary McAllister would be allowed one. Today, Scottish publicity. I am not sure that I was grateful for that players are no longer predominant in English football, because it resulted in the usual barrage of e-mails and so we have to rely on asking whether certain managers letters, but it threw up some very interesting situations. could have a vote. My choice would be the manager of I shall quote just one: “I am a 30 year-old Scot born, my English football team, Bolton Wanderers, namely raised, university-educated in Scotland and currently Owen Coyle, who has distinguished himself in recent living in London. I would like to return in future. I days following the frightening collapse of Fabrice have a large network of young professional Scots both Muamba at White Hart Lane on Saturday. That is a in England and around the world. Those are people really good example of a Scotsman who has done who have a significant vested interest in the future of everyone proud, and I am sure that we all send Fabrice Scotland and their decisions about their future lives Muamba every good wish for his recovery. may well be affected by the outcome of that referendum”. As far as the referendum is concerned, someone The amendment that I have tabled, which I do not who plays football for Scotland but has a career in claim to be perfect, would not give either of us a vote, England or somewhere else would not be allowed to because I have suggested that we use parliamentary vote about the future of that country. Many other election registers. There are many options. When I issues will come down the line—dual nationality, passports looked at the Hansards for the debate on similar issues and security, as my noble friend mentioned earlier—but in 1979 and 1997, it was intriguing to see the variations the simple point that I put to the Minister is that surely in voting procedures. We can use the local election there is some way of finding a system whereby those register, which incidentally would allow noble Lords who were born in Scotland can have a say on the to vote. We have EU citizens, Irish citizens living in future of the country of their birth. Scotland, and an overseas register, but you have to have lived in Scotland in the past 20 years to be on it. We have people who have property in Scotland, but it Lord Selkirk of Douglas: My Lords, the noble is not their first home. We have English people who Baroness has, as usual, made a very persuasive speech, have a second home in Scotland. It is a very complicated and I look forward to the Minister’s reply to the points area. We could do with some clarity on this. My noble that she has raised. friend Lord Browne, who was Secretary of State for Amendments 93 and 98, in the names of the noble Defence when I was a Minister in that department, Lords, Lord Steel of Aikwood and Lord Foulkes of will well remember our difficulties in trying to get Cumnock, and the noble Earl, Lord Caithness, call for service personnel on to any electoral register. Many a much greater involvement of the Electoral Commission, Scottish service men and women serving in the British which I strongly support, on account of two incidents. 1005 Scotland Bill[21 MARCH 2012] Scotland Bill 1006

The first incident involved the noble Lord, Lord people, who would describe themselves as English Steel of Aikwood. In the first election to the Scottish domiciled in Scotland, as well as people of various Parliament he and I were two of the last three to be other nationalities who happen to be living and working elected in Scotland. The counters went on strike at in Scotland. If they are on the electoral register as EU 4.30 am because of the complexities of the proportional citizens, I believe that they should have a vote. representational vote. As a result, we came back the next day and we were elected two out of the last three; The question of Scots who have moved—of course, the third was Robin Harper, the first Green candidate the Scottish diaspora is considerable—beyond the confines to become a parliamentarian. However, we did not of Scotland is a difficult issue in this situation. To know that 2,000 votes had not been counted. some extent, I have some connection because my son has a Scottish father and an English mother but he When this became clear, with great alarm I wrote to was born in England. He is well short of voting age the Secretary of State for Scotland, now the noble but the point is that many people in that situation Lord, Lord Reid. He replied that he did not have the would have an interest. In the future, he may choose to powers to do anything about it, but that we could take live in Scotland. legal action if we so wished. Happily, the chief executive had thoroughly studied the matter, and whichever way After leaving university, I went to live in England. I the votes were counted all three of us would have been was living and working in England at the time of the elected. As soon as we knew that, we had no desire to 1979 referendum. I was not on the electoral register in take the matter any further. I think that the votes have Scotland, although I travelled home in the weeks now been destroyed and it is impossible to rectify the immediately prior to the referendum every weekend to matter. However, that incident should never have occurred campaign vigorously for a yes vote. Even though I did and if the Electoral Commission had been involved, I not have a vote myself, it did not occur to me that believe it would not have done. there was anything wrong with that. I had chosen for The other incident occurred during the devolution whatever reason to leave Scotland. referendum in 1979. I remember vividly the late Robin It may well be that there are many thousands of Cook being very much involved because 2,000 electors people who, like my noble friend Lady Taylor, were had written “No” opposite the word “No” on the perhaps very young when their parents left and they ballot paper, and the counting officer said that writing more or less had to go with them. I accept that they “No” opposite “No” meant “Yes”. I actually believe may not have made that decision but none the less on that they meant “No”. We asked to speak to the chief becoming an adult they would have the option to go voting officer in Scotland but he would not come to back to live in Scotland if that is their choice. They are the phone. There were murmurings of calls on television more than welcome to do so. For people who have left for resignations if the matter was to be swept under Scotland—I left, went back and left again—the situation the carpet. He did come to the phone. He was not very is simple. Youhave to be domiciled in Scotland to have good tempered but he said he would look into it. a vote on something as important as this. Just to say, Within two hours, they had rectified the matter and “I am Scottish in my blood; I feel a Scot; and I do not the votes were counted as no votes. This was important feel any other kind of allegiance” is not enough. in that referendum because it was on a knife-edge; the results were very close and regarded as somewhat A very interesting example was raised by my noble inconclusive at the time. friend when she talked of the very impressive Bolton I mention these two episodes to emphasise how Wanderers manager, Owen Coyle, who I know. When I very warmly I welcome the Minister’s statement that was a Member in another place, Owen and two of his he wishes to involve the Electoral Commission in an brothers who were also professional footballers at the overseeing role. If you have a Government at Westminster time were members of the Labour Party in that who take one view and a Government in Edinburgh constituency. Whether he holds membership now, I do who take a different view, it is very important to have not know. I have not spoken to him for some years. an impartial body that has both objectivity and expertise. But the interesting thing is that Owen Coyle, born and bred in Glasgow, played for the Republic of Ireland. He is an international but he played for the Republic Lord Watson of Invergowrie: I wish to make some of Ireland. It is not just as simple as saying, “He is a comments in relation to the amendments spoken to by Scot, living in England and therefore he should have a my noble friend Lady Taylor of Bolton and the noble vote”. He has played for the country of his parents Lord, Lord Selsdon, in respect of who should have the because they were Irish. Various issues muddy the opportunity to vote in a referendum on Scottish water here. independence. Much as I respect my noble friend, I The noble Lord, Lord Selsdon, introduced the concept cannot agree with her premise that those who were of Scottish nationality, which is difficult to define in born in Scotland and move to other parts of the itself. He says that a person shall be considered to be United Kingdom or even further afield should have of Scottish nationality if they are ordinarily resident the opportunity to vote in the referendum. or resident in Scotland, wherever they come from, At the time of the referendum, whenever it is—like however long they have been there and having made many other noble Lords I hope that it is as soon as their home in Scotland. I would say that someone in possible—it has to be a vote for people who are at that that situation should be entitled to a vote in the time living in Scotland. I am aware that that will independence referendum but to say that they have involve a number of people, not least a considerable Scottish nationality is stretching it a bit. I do not think number that is reckoned to be about half a million that that is the way to define it. I understand the point 1007 Scotland Bill[LORDS] Scotland Bill 1008

[LORD WATSON OF INVERGOWRIE] both which your Lordships’ House seemed well satisfied that he is making and, to some extent, I agree with with. I have heard no criticism of its role in terms of that part of his amendment but not with the bit that supervision. follows. It played a specific role in testing what has become To conclude, this is a matter of great importance to known as the intelligibility of any proposed referendum Scots wherever they live and they are of course spread question in relation to both of the 2011 referendums. I throughout the world. At the time of the independence understand that the commission indicated in its response referendum, it cannot be justified to say that those to the Government’s consultation that it does not have people who, for whatever reason of many reasons, the legal power to play that role in relation to the have left Scotland and have gone to live somewhere proposed referendum on Scottish independence and it else should have a vote. The people of Scotland—but has asked the Government to consider, as indeed have not just Scots of course—at the time of the referendum, other consultees, using this Bill to give it that power so I believe, should be those who make the crucial decision that it can get on with testing the intelligibility of the when the independence referendum comes along. proposed questions. Of course, it could take all the questions that have been proposed in amendments 9.45 pm and test their intelligibility on Scottish voters, focus groups and others. The commission is willing to do Lord Maclennan of Rogart: My Lords, I would like that job and I think that the Government should to say how much I sympathise and agree with the consider amending the Bill on Report to give it that speech of the noble Baroness, Lady Taylor. In the power. world in which we live, where there is great mobility, residence is not a true test of connection. It is much Otherwise, much as the proposals in the amendments the easiest way to determine the outcome of a referendum before us are attractive and beguiling, I think that we but it is not necessarily going to reflect the views of should ask the Electoral Commission to play exactly those who care for Scotland and sense that they belong the same role it has played in previous referendums, to it. In my former constituency, Caithness and Sutherland, particularly the two which were conducted under because there is not a substantial amount of employment legislation passed in this House and in the other place in the area, many local people go all over the world to for the referendums held in 2011. There was endless use the skills that they cannot exercise in Scotland. debate about its role and agreement was reached before But there is no doubt that they go back when they it set off on its work. have completed their jobs, and if they have earned a I say this for a very good reason: if we want the lot of money, they go back earlier. That is a quite a process that determines how the referendum will be common occurrence. conducted to be seen as legal, fair and decisive—and I could also talk about my siblings, all of whom feel we expect now that that will be either in the context of very strongly that they are Scottish, but for various a Section 30 order and the preparation for it, or some reasons work in different places. My younger brother other option should the Section 30 order not be consented works in Glasgow and clearly would be entitled to a to—we have to avoid creating special processes or, vote. My middle brother works all around Britain but dare I say, a special franchise for the election. The returns to Scotland whenever he is free to take a arguments of those who construct emotional, historical holiday. My sister has worked in Scotland, but she is or family reasons for everyone who has an interest in widowed and now spends part of the time on her own the future of Scotland to be included in a franchise are in Greece. However, she still identifies herself strongly very interesting. If we were to be all-inclusive we could with Scotland. find a way of doing so, but that would leave us open to What we are looking for is a referendum that actually the accusation that we are creating a special franchise reflects the views of those who consider themselves to in order to influence the outcome. be Scottish, but it is a difficult issue. I do not think we If the referendum is to be seen as legal, fair and want just to snap up the easiest decision. I commend decisive we should look to a pre-existing franchise, the suggestions made by the noble Baroness, Lady which is what the consultation did. It referred to the Taylor, and my noble friend Lord Selsdon for some two pre-existing franchises in Scotland—the one for clever consideration. If this is left to the Electoral the United Kingdom Parliament and the other for the Commission, I hope that it will not simply take the Scottish Parliament and for Scottish local government— easy way out. and asked for opinions on which of the two those who responded to the consultation preferred. I am content Lord Browne of Ladyton: My Lords, I have already with either of them but I veer towards the one for the had my say on the issue of different referendums quite Scottish Parliament. However, we can have that debate extensively and there are only two aspects of our in the future when we come to look at the matter in the debate on these amendments that I have not expressed context of a decision, rather than in the context of a a view on, so I shall concentrate my remarks on them. proposal, which is where we are at present. First, I turn to the role of the Electoral Commission. With all due respect to my noble friend Lady Taylor, A number of possible roles for the Electoral Commission I know of the difficulties we had not only in persuading are reflected in the amendments that have been proposed members of the Armed Forces to register but in facilitating by noble Lords. It seems to me that the role of the that registration so that they could vote. I have great Electoral Commission in relation to referendums is sympathy for people, particularly those in the Armed now settled. We had two referendums in 2011 and the Forces, who are ordered to be somewhere rather than Electoral Commission played a role in respect of them making the choice and thus being denied the franchise. 1009 Scotland Bill[21 MARCH 2012] Scotland Bill 1010

We ought to look more generally at that issue to see support for this and, again, I think there was widespread whether we can resolve it and make it easier for support for it. My noble friend Lord Selkirk of Douglas members of our Armed Forces to exercise their vote. gave some practical examples of when he believed that However, I resist the temptation to do that for this the Electoral Commission would have been of considerable particular exercise for the reason I have articulated. benefit. I am sure we are not calling now for a recount of the Lothian regional vote in 1999. History might Lord Wallace of Tankerness: My Lords, this group have been different in so many ways if there had been of amendments has allowed us to look at a number of a different outcome there. the practical, important issues which arise in the context The Government’s view is that it is right that the of a referendum. As I indicated earlier, it is an opportunity Electoral Commission should oversee the referendum. for your Lordships to express views on this. Although It is a well-established body, known to be credible, we found consensus on a number of issues in the independent and politically impartial. As the noble earlier debate, clearly on the issue of franchise there Lord, Lord Browne, pointed out, two referendums in have been different views, to which I shall try to 2011 were overseen by the Electoral Commission without respond. criticism. It has the experience and expertise required On a preliminary matter which I am not quite sure to oversee this referendum and can play a key role in related to the independence referendum, the noble ensuring that the referendum and its results are seen to Lord, Lord Foulkes, raised a question on the so-called be fair and decisive. West Lothian commission, which is to look at the Previously, the Scottish Government suggested that implications for the House of Commons of devolution. they would create what they called a Scottish referendum Its formal remit is to consider how the House of commission to oversee the referendum, answerable Commons might deal with legislation which affects only to the Scottish Parliament. As my noble friend only part of the United Kingdom following the devolution Lord Steel indicated, it is not a particularly satisfactory of certain legislative powers to the Scottish Parliament, position when one of the players nominates the referee. the Northern Ireland Assembly and the National The United Kingdom Government believe it is Assembly for Wales. The noble Lord asked about unnecessary to create a new commission—undoubtedly, submitting evidence. I was not aware that it was not that would be done at additional cost—when the Electoral receiving evidence—I am not sure whether the noble Commission is already in place and has demonstrated Lord meant oral evidence or written evidence—but its capability.We are pleased that the Scottish Government the commission that has been established is independent now agree that the Electoral Commission should lead of government and I would be wary of trying to on the oversight arrangements for the referendum and intervene. The commission should be free to undertake we will continue to engage with the Scottish Government such work as it deems necessary to consider proposals on this. Again, a number of responses to the consultation for handling the parliamentary consequences of concurred with that. devolution. A number of noble Lords—my noble friend Lord Lord Forsyth of Drumlean: While my noble and Steel and the noble Lords, Lord Watson and Lord learned friend has a drink, is this phrase of allowing Foulkes—raised the question of timing. The United the Electoral Commission to have “oversight” not Kingdom Government’s firm view is that the question weasel wording? Surely the Electoral Commission should of Scotland’s constitutional status should be resolved be responsible for the overall conduct of the referendum sooner rather than later. The continuing uncertainty campaign. about Scotland’s future is damaging to Scotland and until the issue is resolved that uncertainty will remain Lord Steel of Aikwood: Including the question. and, I suspect, grow. In our consultation paper we asked for views on the timing of the referendum and the majority of responses were in favour of holding it Lord Forsyth of Drumlean: Yes, including the question. sooner than the Scottish Government’s proposal to I notice that in the Scottish Government’s consultation hold it in the autumn of 2014. Recently, my right paper, which was then spun as involving the Electoral honourable friend the Secretary of State set out a Commission, it was invited in as a kind of veneer of timetable for a referendum to be held in September respectability. The Electoral Commission has to be the 2013. We believe that that is a practicable timetable regulator. Is that use of “oversight” by my noble and and see no need to delay. That view has been expressed learned friend weasel wording or does it mean what we by others. CBI Scotland said: all want it to mean? “The timetable should certainly provide for sufficient facts and analysis to be made available to business and the wider public Lord Wallace of Tankerness: My Lords, in our and for the issues involved to be fully considered but, on balance, earlier debate on referendums, in response to an issue we believe that the referendum can and should be held sooner raised by the noble Lord, Lord Foulkes, I said that it is than currently planned”. the Government’s view that the Electoral Commission By “currently planned”, I think it means the preferred should fulfil the same role as it has in relation to UK date of the Scottish Government. There seems to be a Parliament referendums, as set out in the Political general consensus in your Lordships’ House on this. Parties, Elections and Referendums Act 2000. Its role The amendment of my noble friend Lord Steel would would be the same in reviewing the question. My ensure that any referendum on Scottish independence noble friend Lord Caithness raised this. The Electoral was administered by the Electoral Commission. A Commission’s role is to advise and to oversee referendums. number of colleagues and noble Lords expressed their It is not appropriate for it to set the question and 1011 Scotland Bill[LORDS] Scotland Bill 1012

[LORD WALLACE OF TANKERNESS] nationality. There would be administrative difficulties; current legislation does not provide for it to do that. It let us not pretend that it would not be otherwise. is my understanding that the Electoral Commission Importantly, we do not consider it appropriate to would itself have concerns about doing that. The make changes to the franchise specifically for a one-off PPER Act 2000 sets out a clear role for the Electoral referendum, however important it would be—and there Commission that we believe should be respected for a is no getting away from that. Changing the franchise referendum on independence: to review and report on may make some people feel that it has been changed to the question. We believe that that is the right approach. favour one outcome over another and, as I have said on several occasions in the debate, at the end of the 10 pm day we want an outcome where, whichever way it falls, no one can cry foul. I obviously hope that it falls for The noble Lord, Lord Browne, asked about a possible Scotland to remain part of the United Kingdom. amendment on Report to provide for the Electoral Those who would be complaining would say that the Commission to have a role now in relation to the franchise had been manipulated but, if there was some question. We should recognise that the Electoral suggestion that it had been changed in some way that Commission already has the power to, was not consistent with a franchise that we already “provide advice and assistance to”, had, the losing side might well feel that there had been certain bodies under Section 10 of the 2000 Act. However, some attempt made to get one outcome rather than we share the noble Lord’s view that the Electoral another. That would not be the basis for a decisive Commission should have full powers to review and referendum. report on any question, and we have set this view out in the consultation paper. I hope that makes it clear. It Baroness Taylor of Bolton: I understand many of might be worth exploring—I can go no further than the difficulties that the Minister is describing, especially this—whether that Section 10 power to offer advice if the referendum is to be held earlier rather than later. would allow a preliminary review. Without further However, will he take away the thought that perhaps research and a legal consideration of that, I would not we need to do more for the service men and women want to express an opinion on whether Section 10 is who are Scottish in origin and who are serving the wide enough to allow that, but it certainly gives the whole of Britain, and who have no choice in where Electoral Commission power to, they are deployed? Maybe we need to do something “provide advice and assistance to”, more to make sure that they are registered properly, certain bodies. I will certainly look at whether that and then able to vote in such an important decision. offers an opportunity for the Electoral Commission to become engaged, because clearly until a Section 30 Noble Lords: Hear, hear. order is in place it would not have the power in relation to a Scottish referendum. Lord Wallace of Tankerness: From the reaction that The area where we have had some difference of the noble Baroness has had to that comment, it is view relates to the franchise. I thank my noble friend clearly one that resonates across the House. I do not Lord Selsdon—when he gave us his full name, I do not pretend that I have an answer to it, but she asked me to think that anyone would doubt his Scottishness—and reflect on it and we certainly shall. I am not sure if it is the noble Baroness, Lady Taylor. I have learnt some practical but she makes an important point well, and things about her this evening which I had not previously it strikes a chord in the House. appreciated: about her support for Motherwell Football I was going to make the point that I in no way Club and her own Scottish roots. It is the Government’s underestimate the importance of the franchise, but it view that the devolved legislature and local government does not disqualify people from participation in the franchise is the most suitable to use in the referendum. debate or the referendum. When the real debate comes, I do not doubt for one minute, and not just from the I sincerely hope that we will get contributions from contributions we have heard this evening, that many other parts of the UK that have a view to express Scots in the Scots diaspora wish to become involved. about how much they value our United Kingdom. I One can readily understand that. very much hope that Scots from the diaspora will I am sure that as a Leader of the House of Commons, express their views—maybe some that I do not agree the noble Baroness would not have been a rebel. with, but I am sure there will be many that I do—about However, as I think she said, the reason set out in the how valuable over many years they and their families 1997 referendum for that franchise, which we seek to have found Scotland being part of the UK. replicate, was its relative simplicity compared to the We believe that we should try to ensure consistency more complex ones to which she refers. Her amendment and transparency, which is why we have indicated our would provide that a franchise for an independence preference for a franchise based on the present one for referendum would be for those who are eligible to vote the Scottish Parliament and local government. We will in the Scottish Parliament elections, and for UK continue to seek agreement on that basis. With those Parliament elections, if their birth was registered in assurances, I invite the noble Lord to withdraw his Scotland. As I have indicated, we believe that it should amendment. be those who are on the register for local government and Scottish parliamentary elections. The Earl of Caithness: My Lords, I am grateful for My noble friend Lord Selsdon gave an interesting what the Minister said in reply to my amendment, definition. No doubt that very fact would set up a lot which a number of noble Lords supported. I just of dispute and debate as to what constitutes Scottish wonder whether his mind is totally closed on the issue 1013 Scotland Bill[21 MARCH 2012] Scotland Bill 1014 of allowing the Electoral Commission to set the question. A lot of us are still quite concerned about a Section 30 Amendment 95 fudge on which we will have no say except a possible debate. A question could be negotiated behind closed Moved by Lord Wallace of Tankerness doors in order to satisfy the Scottish Government, rather 95: After Clause 10, insert the following new Clause— like the agreement over the past few days to which we “Continued effect of provisions ceasing to be within legislative were not party. We would have the same situation with competence a Section 30 order, and we would then have a question (1) In section 30 of the 1998 Act (legislative competence: that we were not totally content with. Perhaps to avoid supplementary) after subsection (4) insert— that situation, the Electoral Commission might be “(5) Subsection (6) applies where any alteration is made— allowed to set the question. I know that the Minister had reservations about that but I hope that his mind is (a) to the matters which are reserved matters, or still open to being persuaded at a future time. (b) to Schedule 4, (whether by virtue of the making, revocation or expiry of an Order in Council under this section or otherwise). Lord Wallace of Tankerness: I hear what my noble (6) Where the effect of the alteration is that a provision of an friend says, but I ask him to reflect him on two points. Act of the Scottish Parliament ceases to be within the legislative First, it is my understanding that the Electoral competence of the Parliament, the provision does not for that Commission would not necessarily welcome that. reason cease to have effect (unless an enactment provides otherwise).” Secondly, with regard to the point I was making about (2) After section 29(4) of that Act (legislative competence) the franchise: if one seeks to do something different, insert— what are the rules regarding the relationship between “(5) Subsection (1) is subject to section 30(6).” the Electoral Commission and the question under the (3) In section 92 of that Act (Queen’s Printer for Scotland), Political Parties, Elections and Referendums Act 2000? after subsection (4A) (inserted by section 16) insert— If you try to do something different for a Scottish “(4B) If, following an alteration such as is mentioned in independence referendum, you could immediately open section 30(5)— yourself up to a charge of trying to rig or manipulate (a) subordinate legislation is made, confirmed or approved it. The advantages of consistency in this area are under a provision which continues to have effect by important. virtue of section 30(6), and I am told that the Electoral Commission has not, (b) the making, confirmation or approval would be within and does not wish to, set a question as its role is devolved competence but for the alteration, properly to review the question and publish that review, the subordinate legislation is to be regarded for the purposes of this section as being made, confirmed or approved which is important. I do not countenance any situation within devolved competence.”” where the commission would not be engaged, nor where its view on a question would not be made public. Lord Wallace of Tankerness: My Lords, the reason for disagreeing Clause 10 is that this proposed new Lord Steel of Aikwood: My Lords, I beg leave to clause will replace it. The amendment will widen the withdraw Amendment 93. scope of the provision contained in Close 10 so that the savings provision does not apply solely in situations Amendment 93 (to Amendment 91) withdrawn. where legislative competence has been transferred to the Scottish Parliament only temporarily under a Lord Foulkes of Cumnock: My Lords, we have had Section 30 order. It will ensure that the savings provision a fascinating debate ranging from the vicissitudes of will operate where any alterations are made to reserved the Lothian list elections, which I know only too well, matters or to Schedule 4 to the Scotland Act 1998, to the lairs—both of them—of the noble Lord, Lord whether by the making, revocation or expiry of a Selsdon. The importance that I attach to these debates Section 30 order or otherwise—for example, by is indicated by the fact that I have been here all amendment in primary legislation. evening rather than at St Mirren Park where I would There is widespread recognition that clarity is required have seen Hearts beat St Mirren by two goals to nil. regarding the status of Acts of the Scottish Parliament Fortunately, the semi-final when, as my noble friend in the event that legislative competence is reduced. Lord Browne will know, Hearts will face Celtic is on a The amendment has been tabled following comments Sunday, so I will not have the problem that I have had from the previous Scotland Bill Committee and the tonight and I will be able to be there. Having said that, Law Society of Scotland. It will ensure that Acts of I beg leave to withdraw the amendment. the Scottish Parliament that have been validly made within the legislative competence that existed at the Amendment 91 withdrawn. time do not cease to have effect purely because of changes to the boundaries of reserved and devolved Amendments 94 to 94C not moved. matters. Such provisions would cease to have effect only if this was provided for in an enactment. Amendment 94CA (to Amendment 94C) not moved. The amendment clarifies that provisions contained in an Act of the Scottish Parliament that are no longer within the legislative competence of the Scottish Amendments 94D and 94E not moved. Parliament will not automatically fall following that alteration of competence. Therefore, no gaps in the Clause 10 disagreed. law will be created as a result. This means that a positive 1015 Scotland Bill[LORDS] Health and Social Care Bill 1016

[LORD WALLACE OF TANKERNESS] the legislative provision that flows from it will always decision will need to be made to repeal provisions in flow from it even if you subsequently take back the an Act of the Scottish Parliament. This could be done competence, as it is the point at which the competence in the legislation providing for the re-reservation or in is exercised which is important, not what happens separate legislation passed by the UK Parliament. As subsequently. Nevertheless, I note what the Minister a result of this amendment, a provision in an Act of says. For our part, we are content that he has put the the Scottish Parliament that was once within legislative matter beyond doubt. competence, prior to an alteration in that competence, will not for that reason alone cease to have effect. It Amendment 95 agreed. will cease to have effect only if an enactment provides Amendment 96 not moved. otherwise. The wording of the amendment is intended to Schedules 1 to 3 agreed. clarify two things. First, the previous operation of that Amendments 97 and 98 not moved. ASP and anything done under it, up to point of the alteration in legislative competence, is not affected. Amendment 99 (to Amendment 98) not moved. Secondly, any alteration in legislative competence does not affect the continued future operation of the ASP, Amendments 100 to 102 had been withdrawn from the including any powers exercisable under it. For example, Marshalled List. it would ensure that any powers of Scottish Ministers Schedules 4 and 5 agreed. under an Act of the Scottish Parliament to make subordinate legislation would continue to be exercisable House resumed. by them notwithstanding the alteration of legislative competence. Bill reported with amendments. Proposed new subsection (3) of the new provision makes a technical amendment to Section 92 of the Health and Social Care Bill Scotland Act 1998, “Queen’s Printer for Scotland”, in Returned from the Commons consequence of the addition of the provision in proposed The Bill was returned from the Commons with the Lords new Section 30(6) of the Act. I hope that the Committee amendments agreed to. will agree that this is a sensible amendment, which will strengthen the provision that was originally contained House adjourned at 10.17 pm. in Clause 10. I beg to move.

Lord Forsyth of Drumlean: I do not want to detain the Committee, but what problem does the amendment seeks to remedy? Has something arisen? Secondly, if CORRECTION we proceed with a Section 30 order on the referendum, would this enable the power to hold future referendums The following text was omitted from col. 739 of yesterday’s to be retained by the Scottish Parliament? Hansard and should appear immediately after “Motion agreed”. Lord Wallace of Tankerness: My Lords, on the second point, a noble Lord asked me earlier—it may The House proceeded to Westminster Hall accordingly, have been my noble friend the Duke of Montrose— for the purpose of presenting to Her Majesty an Address whether it would be possible to have a Section 30 of congratulation in accordance with the Resolution of order that applied to just one referendum. The answer 15 March. The Commons also assembled in the Hall for is that that is precisely what we plan in our draft. a similar purpose. The issue that the amendment seeks to address is The Address from the House of Lords was read by the that for some powers it may be thought expedient or Lord Speaker as follows: wise to give the Scottish Parliament a temporary extension of power. I think I am right in saying that such a The Lord Speaker (Baroness D’Souza): Most Gracious power was granted under a Section 30 order following Sovereign, the case of Somerville. We seek to make it very clear We, the Lords Spiritual and Temporal, are assembled that if the Scottish Parliament passes legislation—as here today to celebrate sixty years of Your reign. We indeed it did under that power—under a temporary record with warmth and affection our appreciation of transfer from reserved to devolved power, it does not Your dedicated service to Your people, and Your automatically repeal any legislation that has been properly unequalled sense of public duty over the years—service and competently enacted when the temporary transfer and duty to which You have only recently, and so of power ends. movingly, rededicated Yourself. We celebrate too Your stewardship of Your high Lord Boyd of Duncansby: My Lords, my noble office. You have personified continuity and stability friend has suggested that as I have sat here all night, I while ensuring that Yourrole has evolved imperceptibly, should at least say something. It seems to me that the with the result that the Monarchy is as integral a part amendment puts the issue of competence beyond doubt. of our national life today as it was 60 years ago. However, I am not wholly convinced that this is necessary We rejoice in this Jubilee and we give thanks for all because it seems to me that once you confer competence, that it represents. 1017 Health and Social Care Bill[21 MARCH 2012] Health and Social Care Bill 1018

At the same time, we record our gratitude for the This great institution has been at the heart of the support which You have received throughout Your country and the lives of our people throughout its history. reign from His Royal Highness Prince Philip, for in As Parliamentarians, you share with your forebears a this year of jubilee we celebrate his service too. fundamental role in the laws and decisions of your own age. Parliament has survived as an unshakeable cornerstone This is one of the first of many celebrations to be of our constitution and our way of life. held up and down the land. In the coming months You and the Duke will travel widely throughout the Kingdom. History links monarchs and Parliament, a connecting But today Youhave come to Parliament, the constitutional thread from one period to the next. So, in an era when heart of the nation, and granted us the privilege of the regular, worthy rhythm of life is less eye-catching being the first of Your people formally to honour than doing something extraordinary, I am reassured that YourJubilee. And where better to begin the celebrations I am merely the second Sovereign to celebrate a Diamond than here, in the splendour of Westminster Hall—a Jubilee. hall of kings and queens for almost a millennium? As today, it was my privilege to address you during my While this Hall has seen many historic events, few Silver and Golden Jubilees. Many of you were present are permanently commemorated. So we look forward ten years ago and some of you will recall the occasion in with great anticipation to the unveiling of the stained 1977. Since my Accession, I have been a regular visitor glass window which Members of both Houses have to the Palace of Westminster and, at the last count, have commissioned in honour of this day. When placed in had the pleasurable duty of treating with twelve Prime the window above the great doors, Your Coat of Arms Ministers. and Royal Cypher will bathe the Hall in colour and be Over such a period, one can observe that the experience seen daily by Members and staff as they walk through of venerable old age can be a mighty guide but not a to their offices—and by the many thousands of visitors prerequisite for success in public office. I am therefore very we receive here weekly, from both home and abroad. pleased to be addressing many younger Parliamentarians For we must remember that Your Jubilee will be and also those bringing such a wide range of background celebrated with joy in Yourother realms and territories, and experience to your vital, national work. and throughout the rest of the Commonwealth. The During these years as your Queen, the support of my Commonwealth as we know it today is of course one family has, across the generations, been beyond measure. of the great achievements of Your reign and under Prince Philip is, I believe, well-known for declining Yourleadership continues to flourish, with a membership compliments of any kind. But throughout he has been a of 54 countries. It is still growing. It is a tremendous constant strength and guide. He and I are very proud force for good in the world and we are aware of its and grateful that The Prince of Wales and other members special personal significance to You. of our family are travelling on my behalf in this Diamond Jubilee year to visit all the Commonwealth Realms and Many of us present here today take an active part a number of other Commonwealth countries. in the work of the United Kingdom Branch of the Commonwealth Parliamentary Association. We work These overseas tours are a reminder of our close affinity to share our experiences, to learn from one another, with the Commonwealth, encompassing about one-third and to promote democracy. But our efforts are as of the world’s population. My own association with the nothing compared with those of Your Majesty in the Commonwealth has taught me that the most important service of Your beloved Commonwealth. Over the contact between nations is usually contact between its years You have visited all but two Commonwealth peoples. An organisation dedicated to certain values, the countries—some, many times—and attended all Heads Commonwealth has flourished and grown by successfully of Government meetings since 1997. We look on with promoting and protecting that contact. admiration and pride at the triumphs of some of Your recent tours and it is significant that members of the At home, Prince Philip and I will be visiting towns and Royal Family are representing You this year at the cities up and down the land. It is my sincere hope that Jubilee celebrations being held in all those lands in the Diamond Jubilee will be an opportunity for people to which You are Head of State. come together in a spirit of neighbourliness and celebration of their own communities. We also hope to celebrate the Your Majesty, the Lords Spiritual and Temporal in professional and voluntary service given by millions of Parliament Assembled give thanks for this YourDiamond people across the country who are working for the public Jubilee. We look forward to the years to come and we good. They are a source of vital support to the welfare pray that You and Your realms may enjoy the peace, and well-being of others, often unseen or overlooked. plenty and prosperity that have so distinguished Your And as we reflect upon public service, let us again be reign. mindful of the remarkable sacrifice and courage of our Armed Forces. Much may indeed have changed these past Her Majesty’s Reply sixty years but the valour of those who risk their lives for the defence and freedom of us all remains undimmed. Her Majesty’s Most Gracious Reply was as follows: The happy relationship I have enjoyed with Parliament My Lords and Members of the House of Commons, has extended well beyond the more than three and a half thousand Bills I have signed into law. I am therefore I am most grateful for your Loyal Addresses and the very touched by the magnificent gift before me, generous words of the Lord Speaker and Mr Speaker. generously subscribed by many of you. Should this 1019 Health and Social Care Bill[LORDS] Health and Social Care Bill 1020

[BARONESS D’SOUZA] privileged to witness some of that history and, with the beautiful window cause just a little extra colour to shine support of my family, rededicate myself to the service of down upon this ancient place, I should gladly settle for our great country and its people now and in the years to that. come.

We are reminded here of our past, of the continuity of House adjourned to the Chamber of Parliament. our national story and the virtues of resilience, ingenuity and tolerance which created it. I have been House adjourned during pleasure. GC 165 Arrangement of Business[21 MARCH 2012] Immigration and Nationality Regs. 2012 GC 166

50 per cent. This route is open only to those currently Grand Committee in the UK on a tier 1 general visa that is due to expire during 2013 and confers benefits including unrestricted Wednesday, 21 March 2012. access to the United Kingdom labour market, and ultimately the ability to apply for indefinite leave to 3.45 pm remain. The new fee better reflects the value of these benefits. Arrangement of Business Fees for tier 2 visas for migrants coming to the UK to work for a sponsor will rise by 20 per cent to £480; Announcement an incremental step towards our objective of aligning The Deputy Chairman of Committees (Viscount fees for the original entry visa with the fee paid in the Ullswater): My Lords, if there is a Division in the United Kingdom to extend stay in this route. Thirdly, House, the Committee will adjourn for 10 minutes. for media representatives coming to the UK to work for an overseas employer on a long-term assignment, this fee is being increased to align with the tier 2 visa Immigration and Nationality (Fees) fee to reflect the similarities between the two routes. Fourthly, for tier 2 intra-company transfer visas of less Regulations 2012 than 12 months’ duration and extensions under this Considered in Grand Committee route in the UK, this increase reflects the benefits conferred by this route. 3.45 pm The tier 4 visa fee is being increased to cover the full Moved By Lord Henley costs of processing these visas. In the current economic climate we can no longer subsidise these visas. The That the Grand Committee do report to the visa for extended family members of refugees and House that it has considered the Immigration and those with humanitarian protection coming to the UK Nationality (Fees) Regulations 2012. is also moving to cost recovery. We are aligning it with similar settlement visa routes following changes that Relevant document: 41st Report from the Joint were introduced in the Immigration Rules in 2011. Committee on Statutory Instruments Licence fees to those organisations that sponsor migrants in the UK are increasing to better reflect the The Minister of State, Home Office (Lord Henley): administrative costs. For large organisations sponsoring My Lords, these regulations concern fees charged for employees to work under tier 2, the fees will be £1,500, visa, immigration and nationality services. The fees while for small businesses and charities we will charge paid by those making visa, nationality and immigration £500. applications must be specified in regulations made under Section 51 of the Immigration, Asylum and New fees being introduced include a graduate Nationality Act 2006. Regulations that set fees exceeding entrepreneur route in the points-based system. This the administrative cost of processing an application route is being developed for those who have been must be approved by both Houses before they are identified by United Kingdom universities as having made; this procedural requirement is imposed by Section developed world-class innovative ideas or entrepreneurial 42 of the Asylum and Immigration (Treatment of skills but have yet to meet the requirements of the tier Claimants, etc) Act 2004. Regulations dealing with 1 entrepreneur route. This will allow them to develop fees at or below cost are subject to the negative resolution their business in the United Kingdom procedure. The new fees will cover extending the mobile biometric The intention is to introduce two sets of regulations enrolment service to include applications for indefinite on 6 April that will replace existing fees regulations. leave to remain, widening the range of services that we The first set of regulations will deal with above-cost can offer our customers, and enabling those who have fees and must be approved by Parliament before it is come to the UK under the tier 1 exceptional talent made, and it is a draft of these regulations that is route that launched last year to extend their stay; this before the House today. The second set, dealing with will ensure that we retain the skills and talents of those fees set at or below cost, does not require prior approval whom we have attracted to work and base themselves from Parliament and has already been made. The here. regulations were laid before Parliament on 15 March. Finally, the new fees will also cover providing certain I recognise that having fees in two sets of regulations stateless persons with the ability to acquire—or makes things a little complicated, and I am happy to renounce—the status of British protected person. In take points on any of the fees proposals here today. addition, the fees paid by dependants of members of In general we are proposing to limit the majority of the Armed Forces will be frozen at current levels in increases to 2 per cent. For example, we propose to recognition of our commitments under the Armed increase the short-term visit visa applications by 2 per Forces covenant. cent, as we recognise the importance of the visitor Legal migration brings economic, cultural and social route to the United Kingdom economy. This is still benefits to the United Kingdom. We will continue to about half the actual cost to the UK Border Agency ensure that fees for immigration and nationality send of processing this type of application. Increases to a clear signal overseas that the country will go on fees that do not follow this approach include tier 1 welcoming the brightest and the best, and these proposals general extensions of leave; these will increase by support that message. GC 167 Immigration and Nationality Regs. 2012[LORDS] Immigration and Nationality Regs. 2012 GC 168

[LORD HENLEY] of overseas business men and women coming to this We also continue to monitor the economic, equality country, combined with policies on airport capacity, and diversity impacts of our changes and to ensure are having a chilling effect on investment in this country that our fees continue to be priced at levels which from countries such as China. make them competitive when compared with those in I watched the Budget Statement and was very other countries. disappointed that it had very little to say about how I believe that these regulations provide a basis for a we are going to get this country growing again. The sustainable immigration system that noble Lords will Minister may say that that is a little wider than the want, and I commend them to the Committee. Home Office’s usual brief, but how policy is developed in relation to immigration and to fees can play an important part. It would be good to know how the Lord Hunt of Kings Heath: Once again, it is a Minister will respond to the concern of many businesses. delight to follow the noble Lord, Lord, Henley, as we This is also very much related to the issue of higher deal with orders and regulations in Grand Committee. education and the ludicrous restrictions made on overseas I am grateful for his very persuasive arguments in students coming into legitimate institutions in this favour of these regulations, but I have one or two country. All that is doing is undermining one of our points to raise. most successful economic sectors. Clearly, the regulations are about making UKBA pay its way in the world. Does there come a point where providing additional services on a premium Baroness Hamwee: My Lords, I, too, thank the basis and dramatically increasing the cost of applying Minister. As the noble Lord, Lord Hunt, said, some of for particular forms run the risk of effectively selling the reactions to the increase in fees are well known. British citizenship? How precisely does the Minister They are exactly what any Government of any colour assess the value to an individual who is making a would say—that charges should reflect the level of particular application? That is how the amount is now service and be appropriate to it. The problem is that set, it seems. It is not the amount it costs to run or we hear far too often that customer service is relatively provide the service, but the assessment by UKBA or poor. It was described to me as a “litany of minor the Minister of the supposed value to the applicants of problems”. If you accumulate a set of minor problems, the benefits that accrue to them. It would be interesting in totality they become more than just minor. to know how those figures are arrived at. There is a reputational issue, too. I was given the What impact does the Minister think that the increases comparison of two people coming to the UK and to will have on the total number of people applying to Germany; the one who arrived at Frankfurt would be come to the UK or to stay once they are already here? dealt with there and then, whereas the one coming to Will he say a little more about how much additional the UK would have had to send his passport to the money will be raised for UKBA? Some increases are embassy in his country in advance. Obviously, there higher than others, but the noble Lord referred to an are different arrangements depending on different average of 2 per cent. Clearly, it would be interesting individuals but, in general, it is a very telling point. to know the impact on UKBA’s income. Businesses will stop and ask themselves where they Another point raised in the debate on these regulations should choose to go on that basis. I have been told in the other place was in relation to Armed Forces anecdotal evidence of companies beginning to move personnel and charges for visas. The Minister there their functions away from the UK because of the referred to the relationship to the military covenant. long-term path of the immigration system. It is, of Can the noble Lord explain a little more about this course, more than just a concern about fees; it is the issue? direction of policy and the complexity of our rules that are in question. I mention complexity in this Finally, I come to the impact on business and the context because those who have to find their way UK economy. The noble Lord will know that the CBI around the system, being charged what are perceived has condemned the Government’s decision to increase as high fees—and I hear the point made about the visa fees for working migrants and their sponsors as a cost—have higher expectations of service. It is quite bitter blow to UK business. Neil Carberry, director for telling that many businesses engage lawyers and maybe employment and skills policy at the CBI employers’ other professionals to advise on how to cope with the group, was scathing about the cost upgrades. He said: system. “The shock announcement that some work permit charges will rise between 20 and 60 per cent will come as a bitter blow to The Merits Committee, of which I am a member, businesses. Firms have yet to see the improvements in customer commented in its report to the House of the limited service they were promised, in return for the last tranche of analysis of the impact of the increases on business. inflation-busting rises last year”. The letter from the CBI published in the report was There are two points here. First, there is the concern really quite measured and clear; it did not use extreme that increases in fees will be made but the service will language in any way. It pointed out that in the view of not improve. That is a very important issue that the the CBI, noble Lord needs to address. Secondly, there is the “employers have yet to see the improvements that were promised impact on the UK. I do not know whether the noble on the eve of last year’s increase, or that of 2010”, Lord has had time to study the article this morning by and that, William Walsh, the boss of British Airways, who talks “where UKBA is seeking to charge firms commercial rates, and is about the attitude of business people in China investing seeking a return … firms have the right to expect a higher level of in the UK. Essentially, the perceived discouragement service”. GC 169 Immigration and Nationality Regs. 2012[21 MARCH 2012] Immigration and Nationality Regs. 2012 GC 170

I have a question that is obvious, to me, but it may to hire him permanently, cannot apply under tier 2 be too soon to give an answer to it. What would be the general until 12 months after the ICT permission has effect on efficiency and level of service of splitting the expired. border agency into two component parts? It was against I do not know how realistic that is. It seems on the this background that I rather blinked to see the proposal face of it likely to prove an obstacle to employers and for a premium sponsor scheme. I put down a Motion thus an obstacle to a particular area of economic directed to this but decided to withdraw it and simply success. It was not something that I believe was raise the points during this debate. I have real concerns recommended by the Migration Advisory Committee, about this being the thin end of a wedge of our so why, in the difficult context that we are discussing, creating a first class and, to use a railway operator’s have the Government proposed it? language, a standard class which is really second or third class. The service is private, but it is a public service as well. I reflect that if there is an attitude that Lord Avebury: My Lords, my noble kinsman said immigration is not of general social value, then that that he was going to continue welcoming the brightest impacts on the whole policy. As I said, it is a public as and the best, yet some of the announcements that he well as a private service. has made seem to go directly contrary to that, particularly the huge increases in fees for tier 1 general and tier 2 visas for coming to the UK. I suppose that we should 4pm give a partial welcome to the graduate entrepreneur I was also concerned there was no specific consultation scheme. I should like to ask the Minister, in pursuance on the premium sponsor scheme. I know that it was of the points raised by my noble friend, whether it is originally proposed in 2009 and there was a generally aimed at people who have graduated from a UK favourable response then, but there may well have university. Will they proceed directly from their studies been a different context in terms of how employers felt to the graduate entrepreneur route, or will they be about the service at the time. It is fair to say that the required to go back to their own country and make the reaction now seems to be rather reserved until we see application from there? Will people who graduate what will be delivered and what value for business from universities overseas be able to enter the United there will be in joining the scheme. Clearly, there has Kingdom ab initio along this route without having to be significantly more than is offered under the been in a UK institution of higher education previously? current arrangements and I think that we need some In his Written Ministerial Statement of 9 February, clarity. the Immigration Minister, Damian Green, said: One thing that bothers me is that the customers of “We have continued with our strategic approach to charging; the new premium scheme will not sign up until they setting certain fees above cost on the basis of the value of the know what is on offer. The border agency will not service”.—[Official Report, Commons, 9/2/12; col. 47WS.] commit itself until it knows what its likely income is Both the noble Lord, Lord Hunt, and my noble friend and what it will be able to afford. There is a space to be Lady Hamwee have questioned whether there is a watched there, but one that rings some alarm bells in proper relationship between these two variables. As I my own mind. have already said, some of the fees are very high and All this is against a background of more and more some were admittedly way above the unit cost estimate. tightening for employers as well as individuals and I On what basis does the UKBA, or the Home Office, want to ask about the reasons behind two changes in assess the value of the service? What account, if any, the immigration laws that are about to come into do they take of such matters as the appeals success effect. I warned the Minister that I would do so. The rate and the findings of the chief inspector’s report in first is on graduate recruitment and the closing of the determining the quality of the service provided? For tier 1 post-study work category and the introduction example, the chief inspector in his global review of of the graduate entrepreneur route. That is intended entry clearance made several critical findings. He looked to apply, I understand, to a smaller pool of exceptional at a sample of the cases decided at all the UKBA’s graduates. I recognise that that is another route for an entry clearance decision-making centres—around 1,500 employer wishing to sponsor a graduate, but that cases in total—and found that the evidence submitted application cannot be submitted until after graduation with the application had not been considered properly as distinct from the current completion of studies. in 483 cases, which was 33 per cent of the sample, and I would be interested to know whether this is about that in a further 201 cases, which was 14 per cent of numbers or something more. New graduates who set the sample, the lack of evidence held on the UKBA out immediately on an entrepreneurial route are to be file meant that it was not possible to assess whether applauded, but I do not think there can be many the evidence submitted had been considered properly. of them. The chief inspector also found that, in 235 cases—16 per Secondly, the cooling-off period of 12 months cent of the sample—applications had been refused on strikes me as an unfortunate description because in the basis that the applicants had failed, consumer areas it is about changing one’s mind and “to provide information which they could not have been aware saying no. Somebody wanting to change employer [was required] at the time of making their applications”. who leaves the UK will not be able to apply to In 475 cases, there had been a review by an entry re-enter until 12 months after the previous tier 2 clearance manager, and, of those, 141 cases—30 per general permission has expired. This would mean that cent—the chief inspector found that poor-quality an individual sent to the UK on an assignment under decision-making had not been picked up by the entry the intra-company transfer tier, whose sponsor wishes clearance manager. GC 171 Immigration and Nationality Regs. 2012[LORDS] Immigration and Nationality Regs. 2012 GC 172

[LORD AVEBURY] Lord Henley: My Lords, I have been asked quite a These criticisms indicate that the quality of service number of questions and will endeavour to answer as being provided is abysmal and that it is sheer exploitation many as I can. I apologise in advance for those that I to charge over the cost. In fact, it could be argued that miss and will in due course write to noble Lords to the cost is seriously inflated by the high proportion of pick up anything that I fail to deal with. wrong decisions, and that the charges should be related The noble Lord, Lord Hunt, made the allegation only to the costs of decisions properly reached. that we were simply selling British citizenship. I do not A similar view might be taken of the way in which accept that, but I think that it is right that, when many students have been treated recently when a college’s setting fees above the cost, it is perfectly permissible to licence is suspended or revoked, through no fault of look at the value to the applicant of a successful their own, but also other migrants whose visas are application while maintaining the United Kingdom as summarily curtailed. The case of Patel, on the fairness an attractive destination to work, study or visit. That of revoking a sponsor licence, is but one recent example is why we set the fee for a short-term visit below cost, where the Upper Tribunal (Immigration and Asylum while a tier 1 or settlement fee is set above cost to Chamber) has needed to issue a reported determination, reflect the value of a successful application. That is reminding the UKBA of the general duty of fairness certainly not going down the line, as the noble Lord in decision-making, particularly in cases of students was suggesting, of selling British citizenship. whose sponsor’s licence has been revoked and who The noble Lord then asked about the effect of the face, through no fault of their own, losing their fee increases on the number of those coming in. We immigration application fee and incurring substantial believe that our fees continue to represent good value other expenses as a result. The key finding in the Patel for money; indeed, the visa fee is only a small proportion case was that, where the applicant was both innocent of the overall cost that any individual would pay if of any practice that led to the loss of sponsorship they decided to come to the United Kingdom. There is status and ignorant of such loss of status, common no evidence to suggest that the fee proposals will law fairness and the principle of treating applicants undermine ongoing plans to promote the United equally meant that each applicant should have an Kingdom as an attractive destination. We do not think equal opportunity to vary their application by being that they will have the effect that the noble Lord afforded a reasonable time in which to find a seemed to imply. substitute college on which to base their application The noble Lord also asked what additional income for an extension of stay to obtain the relevant would be available to UKBA. I can give him an qualification. In the curtailment cases, express Home assurance that something in the order of £40 million Office policy is to afford 60 days for such an application will be raised. I also make it clear to my noble friend to be made. Lady Hamwee and my noble kinsman Lord Avebury, who spoke about service standards within the UK In previous debates on fees orders, I have raised the Border Agency, that the agency is exceeding most of question of refunds. For example, in March 2010, I its service standards. However, it is important that it said: generates income to be able to continue to improve “There should be timeframes for deciding 100 per cent of the standards as is appropriate and to invest in making the cases and, if deadlines are missed, there should be refunds to the United Kingdom border secure and effective while individuals concerned”.—[Official Report, 4/3/10; col. 1647.] providing the right service for individuals as they come in. The then Minister, the noble Lord, Lord West, replied: The noble Lord, Lord Hunt, then moved on to the “On refunds, we charge for consideration of the application question of the Armed Forces, which I briefly touched and so do not offer refunds—the consideration is a cost to us as on in my opening remarks. We have reviewed the entry well”.—[Official Report, 4/3/10; col. 1651.] clearance visa fees that apply to dependants of serving I should like to ask my noble kinsman the Minister Armed Forces personnel who come to the UK to join to reconsider that policy. Why should someone who their serving family member. The entry clearance fee receives an abysmal service nevertheless have to pay for these dependants is being held at 2011-12 levels. for it? The Upper Tribunal (Immigration and Asylum This is in recognition of the service to the country of Chamber) has recently issued the following general members of the United Kingdom Armed Forces and guidance in a reported decision: in support of the Government’s commitment and duty of care to members of the Armed Forces under the “Fairness requires the Secretary of State to give an applicant new Armed Forces covenant. an opportunity to address grounds for refusal, of which he did not know and could not have known”. 4.15 pm That indicates that the tribunal is seeing examples of what the chief inspector has found in situations other The noble Lord and the noble Baroness, Lady than the entry clearance cases on which the chief Hamwee, touched on the question of the impact on inspector was reporting. business and the various criticisms made by the CBI. The noble Lord asked me to comment on the Budget, I hope that my noble friend will concede that, in and I will just say that that is slightly beyond my level any normal business, a supplier simply would not get at the moment. I can assure him that I read the article away with overcharging for services which are manifestly by Willie Walsh, which gained some justifiable of such poor quality as this, and that the fees in this criticism not just for the Home Office but for all parts order are an abuse of monopoly power. of the Government, particularly in relation to his GC 173 Immigration and Nationality Regs. 2012[21 MARCH 2012] Immigration and Nationality Regs. 2012 GC 174 comments about airports. However, I do not think that there will be further consultation, but I will certainly that the noble Lord would want me to go down that make sure that she is provided with the appropriate route. clarity that she seeks. We would obviously want to In terms of what we do within the UKBA, the fees make sure that employers have that clarity as well, that we charge and the service that we provide, we because if they do not they will not be able to make believe that our fees compare favourably with key use of the system. competitors in other countries and offer very good I turn to my noble friend’s questions, of which I value when considering the benefits and entitlements was grateful that she gave me notice. First, with regard of a successful application. A recent analysis undertaken to the tier 1 post-study work closure supplemental, as by the Australian Department of Immigration and my noble friend accepts, the focus of the debate should Citizenship supports the Oxford Economics assessment be on fees, but we have to look at the matter in the that visa application demand is quite inelastic with wider policy context for immigration. The tier 1 post-study respect to moderate changes in visa charges. The work route will close on 6 April; currently it provides Australian analysis shows that the cost of a visa is very graduates with unrestricted access to the labour market low relative to the total monetary value of the business for two years. A UKBA survey revealed that 30 per and the high desirability of the product. Historical cent of those with post-study work leave were in analysis shows little, if any, correlation between changes low-skilled employment or unemployed. In a time of in visa prices and volume growth in visa applications. high unemployment in the UK, it was right that we Therefore we do not accept that there will be the effect should close that route. From 6 April graduates who on business that has been claimed, and we reject the wish to remain in the UK and work will need to apply criticisms by the CBI. The United Kingdom Border through tier 2 and the points-based system and need Agency issues successful sponsor applicants with a to be sponsored by a licensed tier 2 sponsor. The licence that allows an employer or, for that matter, an minimum salary threshold for tier 2 is £20,000 or the educational service to bring migrants to work or study appropriate rate for the job as detailed in the tier 2 over a period of four years—and that is not an annual codes of practice, whichever is the highest. fee. So to refer to this as “a bitter blow” to working migrants and their sponsors does seem to be rather My noble friend also asked about the advice from over the top. the Migration Advisory Committee and what we had If I may, I will move on to some of the concerns or had not asked it. The committee was asked to about consultation put forward by my noble friend advise on appropriate economic criteria for settlement Lady Hamwee. She asked what consultation we had and recommended a simple pay threshold as a good undertaken before introducing these changes, particularly indicator of skill. The cooling-off period that we in relation to what she called the first-class and standard- referred to, which my noble friend asked about, was class service. We consulted informally with a number not part of its remit, but that was covered in the of licence sponsors, representative bodies and other Government’s consultation document on employment- government departments about the proposal for a related settlement, tier 5 and overseas domestic workers. sponsor premium service, and that enabled us to confirm We believe that it was right to include in the changes to that a number of high users of the system would be Immigration Rules laid on 15 March, as part of the willing to pay for an enhanced service from the UK package of changes intended to break the link between Border Agency. We have gained, we believe, a clear work and settlement and to reposition tier 2 as a understanding of which benefits would be welcomed primarily temporary route, a 12-month cooling-off in addition to the standard sponsored package. I do period for tier 2 migrants. not accept the suggestion that the new premium service is just a way of making additional income. We have I think that I have dealt with most of the points. listened to the potential customers of UKBA and they I wanted to get on to the general criticisms of my have told us that they would be willing to pay for it. noble kinsman—that is, my noble friend Lord We think that is a matter that we should accept. Avebury—about service standards and the question as to whether refunds would be paid. As I made clear earlier, we believe that the UK Border Agency is Baroness Hamwee: I hope that I did not put it in meeting most of its targets. I accept that there will be quite the stark terms in which he reflected it back to failings on occasions; that is always the nature of me. I was concerned, rather than making any allegations, things. The UKBA monitors and publishes its own because there are no details yet of a scheme to which I service standards and makes them available on the can respond. Is it intended that, when there is more website. It is committed to improving the service that clarity following the work to which he has referred it provides; that is why I talked about the investment about the particular services that might usefully come and why the fees are important. It will take steps to within such a scheme, there will be a further round of address issues that may prevent it from achieving its consultation, discussion or conversation—call it what service standards. you will—before the scheme is finalised? What I have picked up is the feeling that there is a real lack of My noble kinsman then finally asked whether refunds clarity and that it is difficult for employers to respond could be paid for bad decisions. He quoted a response at present. from the last time he tried to get something on this from the previous Government, from the noble Lord, Lord Henley: My Lords, I apologise for that Lord West. I do not always agree with everything that misunderstanding of the point being made by my came from opposition spokesmen when they were in noble friend. I cannot give her an absolute guarantee government, or otherwise, but on this occasion I am in GC 175 Immigration and Nationality Regs. 2012[LORDS] Anti-terrorism, Crime and Security GC 176

[LORD HENLEY] life or cause serious harm to human health. Conversely, full agreement with the noble Lord, Lord West, and where we are satisfied that a pathogen or toxin could there has been no change in policy. I hope that that not be used effectively in an act of terrorism, we deals with most of the points. should seek to remove it from the list to remove unnecessary burdens. Motion agreed. The approach used to review the list of controlled pathogens and toxins is a robust one. Experience with lists of pathogens produced for health and safety at Schedule 5 to the Anti-terrorism, Crime work shows that there is always debate about the and Security Act 2001 (Modification) inclusion of individual pathogens and toxins on such Order 2012 lists and that they need to be reviewed from time to time as more information becomes available. The key Considered in Grand Committee is to make pragmatic decisions based on the available knowledge of the experts involved. 4.25 pm The threat posed by the possible terrorist use of Moved by Lord Henley pathogens and toxins remains real. It is imperative to ensure that terrorists do not have access to dangerous That the Grand Committee do report to the substances but it is also important to ensure that the House that it has considered the Schedule 5 to the measures are proportionate and important scientific Anti-terrorism, Crime and Security Act 2001 research and medical use are not restricted. (Modification) Order 2012. If the draft order is approved by both Houses, it Relevant document: 43rd Report from the Joint will come into force on 1 October 2012. I believe that Committee on Statutory Instruments the modification strikes the right balance and therefore commend it to the Committee. I beg to move. The Minister of State, Home Office (Lord Henley): My Lords, I beg to move that the Committee considers 4.30 pm the draft Schedule 5 to the Anti-Terrorism, Crime and Security Act 2001 (Modification) Order 2012. The Lord Hunt of Kings Heath: My Lords, once again, draft order was laid before the House on 1 March 2012. we are grateful to the noble Lord, Lord Henley, for his full explanation of the order before the Grand Committee Protecting the public from terrorism will always be this afternoon. I support the general thrust of what he the principal priority of this Government and we are said and will support the order. I just want to ask a committed to ensuring that the police and others have couple of points. Could he say a little more about the the powers that they need to tackle terrorism. But consultation process? I note from paragraph 8.1 of the there is also a need to guard against placing Explanatory Memorandum that, disproportionate burdens on business, industry and “Laboratories and law enforcement staff were consulted”. academia. Were other agencies also consulted that might have an The purpose of the Anti-Terrorism, Crime and interest in this area? I also want to ask him about Security Act 2001 is to ensure that the Government paragraph 12.2. Very helpfully, the Explanatory have the necessary powers to counter the terrorist Memorandum points out, threat to the UK. Part 7 of the Act is intended to “The outcome will be subject to expert review in 2013”. improve the security of dangerous biological substances Obviously these are sensitive issues, but I wondered that may be targeted or used by terrorists. whether the outcome of that review in general would Schedule 5 lists the substances that are subject to be made available in the public domain and whether the provisions of Part 7 of the Act. Any laboratory there might be an opportunity at that point for further that intends to hold one of the controlled pathogens debate in Parliament. and toxins must notify the Home Office and comply Clearly the UK remains in a state of alert against with physical, personnel and electronic security advice the threat of the use of biological weapons, and that is as directed by the police. A pathogen is a biological absolutely right. The Minister will know that his own agent that can cause disease or illness. department and the police have suffered reductions in The purpose of the draft Schedule 5 to the Anti- their budgets. Will he confirm that that has not had an Terrorism, Crime and Security Act 2001 (Modification) impact on our capacity to deal with the particular Order 2012 is to add one pathogen to the list of threat posed by these biological substances? controlled pathogens and toxins in Schedule 5 to the The impact assessment, which I found helpful, makes 2001 Act and to remove four pathogens. The draft it clear that, in relation to biological agents, inspections order sets out the specific details of the modification, are carried out by the Counter Terrorism Security which I will not repeat now. Advisors, who are located within police forces and are The list of controlled pathogens was reviewed by a responsible for providing specialist protective security group of Government, academic and industry experts advice to local organisations, with their work co-ordinated with the aim of ensuring that it was up to date with by the National Counter Terrorism Security Office. scientific advances and emerging terrorist threats and My understanding is that the CTSAs have the responsibility diseases. to undertake security assessments of laboratories holding Pathogens and toxins should be added to or remain Schedule 5 substances and, as stated above, have the on the list only if we are satisfied that the pathogen or powertorequireimprovementstotheirsecurityarrangements toxin could be used in an act of terrorism to endanger operation. These are located within police forces. GC 177 Anti-terrorism, Crime and Security[21 MARCH 2012] Localism Act 2011 Order 2012 GC 178

I want to ask the Minister about police and crime pathogens handled in UK facilities could have potential commissioners. Will he assure me that the Home to cause very serious harm if used by terrorists. We Office is satisfied that police and crime commissioners then had two 12-week consultation exercises, and the would not be in a position to inhibit the work of these consultation document was made publicly available. people to carry out their security assessments of Communications were targeted at law enforcement laboratories? What would happen if a police and and bio-laboratory communities by e-mailing invitations crime commissioner sought to intervene with a chief to respond to each force and laboratory through their constable to say that they did not think that this was a professional association. We had relatively few responses particular priority? If the noble Lord thinks that I am to that consultation—only about 20—but that is to be on a flight of fantasy, I would remind him of the expected in such a specialist area. actions of the Deputy Mayor of London, Mr Kit The noble Lord’s second point related to cuts in the Malthouse, who has sought to interfere with the budget. I repeat that it is very difficult in the Home Metropolitan Police in the exercise of its operational Office and all other departments having to cope with responsibilities when it comes to phone hacking. The reductions in expenditure. However, we all accept that noble Lord was not, alas, able to be present for our we can still do the job and do it properly, and I can debates on the police and crime commissioners except, assure the noble Lord that I still believe that that is I think, at the very end, but we raised those issues. So I possible. think that it is entirely relevant for me to ask that Lastly, the noble Lord raised the point about PCCs. question in relation to ensuring the integrity of our It was a nice try, but they will not be able to inhibit or national security and ensuring that any perversity that damage any of the work under the Anti-terrorism, might come from certain elected police commissioners Crime and Security Act. The obligations are set out would not in any way interfere with overall government clearly in Part 7, and the police have a duty to explore responsibility for national security. those obligations. I do not believe that that is a matter on which we will see interference from PCCs. Baroness Hamwee: My Lords, rather like the debate I hope that that deals with the questions from my that we had on the drugs order yesterday, I think it is noble friend and the noble Lord. I beg to move. quite hard for lay people—certainly such as I am—to judge proposals such as this. We have to rely on the Motion agreed. experts and are grateful that they are there to advise. My noble friend the Minister has referred to the balance that has been struck. I take the point about Localism Act 2011 (Consequential the need for there to be a balance, although I was interested to read in the notes attached to the impact Amendments) Order 2012 assessment the list of criteria used by the Lightfoot Considered in Grand Committee review as to which biological agents should be included or excluded from the list. In particular, it was quite 4.39 pm interesting that ease of production was one of them, Moved by Baroness Hanham since a substance, a pathogen or toxin was of a level of danger or not. I do not see that as affected by the ease That the Grand Committee do report to the of production, but I suppose that the whole area of House that it has considered the Localism Act 2011 risk is quite tricky. (Consequential Amendments) Order 2012. Like the noble Lord, Lord Hunt, I looked at the Relevant document: 41st Report from the Joint paragraph on consultation and cannot believe that the Committee on Statutory Instruments health services were not consulted. The impact of any of these getting loose, as it were, is clearly relevant to them. Could the Minister say a word about their The Parliamentary Under-Secretary of State, Department involvement in the process? for Communities and Local Government (Baroness Hanham): Apart from those questions, I support the order. My Lords, the consequential provisions order makes amendments to existing legislation in relation to policies implemented through the Localism Act relating to the Lord Henley: On consultation and who was brought general power of competence, compulsory acquisition on to the expert panel, there was a government, academic of land and neighbourhood planning. and industry expert panel comprising representatives The parish councils order, which I will also speak of the Health and Safety Executive, the Health Protection to, sets out the conditions that parish councils will Agency, the Defence Science and Technology Laboratory, need to fulfil in order to be eligible to use the general the Department for Environment, Food and Rural power of competence. Affairs, the National Counter Terrorism Security Office, the Security Service and the Department of Health. I The Localism Act (Consequential Provisions) can give that assurance to both noble Lords. I imagine Order 2012, as implied by the title, will make consequential that it would also have included representatives from amendments to particular provisions in existing primary the devolved Departments of Health, as well as the and secondary legislation following the enactment of National Institute for Biological Standards and Control, the Localism Act 2011. the Association of the British Pharmaceutical Industry, The order provides for amendments in three specific Imperial College, the Centre for the Protection of policy areas, each of which has its own schedule. National Infrastructure and, last but not least, the These are: the general power of competence; compensation Home Office. That expert panel considered which for compulsory acquisition of land; and neighbourhood GC 179 Localism Act 2011 Order 2012[LORDS] Localism Act 2011 Order 2012 GC 180

[BARONESS HANHAM] development plan, and also set out when a new planning. I will consider each of these schedules in neighbourhood planning policy is published for the turn. The amendments in Schedule 1, Article 2, deal purposes of transitional arrangements. with the insertion of text referring to the general While the amendments contained in this order are power of competence into various pieces of legislation, in the main technical and, in some cases, quite hard to such as the Industrial and Provident Societies Act 1965. follow, they are vital to ensuring that the provisions References to the well-being power are, however, being contained in the Localism Act 2011 work as intended. retained in two particular circumstances. First, the I commend this order to the Committee. well-being power is being retained in Wales because Welsh Ministers were offered the opportunity to have the general power of competence but they decided 4.45 pm against it. Secondly, it is retained to deal with the I turn to the second order under consideration, the historical exercise of the well-being power by English Parish Councils (General Power of Competence) councils—for example, where bodies such as ALMOs (Prescribed Conditions) Order 2012. The new general were established using those powers. power of competence provided for local authorities in Schedule 2, Article 3, covers the compensation the Localism Act 2011 is an important part of the arrangements for compulsory acquisitions of land. Government’s decentralisation agenda. It is intended The amendments in Schedule 2 are necessary to fully to provide English councils, including certain parish implement changes brought about through Section councils, with confidence in their legal capacity to act 232 of the Localism Act. This section of the 2011 for their communities and in their own financial interests Act reformed the planning assumptions for compulsory to innovate and generate efficiencies. As discussed purchase compensation and, in doing so, replaced earlier, it replaces the well-being power in the Local Sections 14 to 16 of the Land Compensation Act 1961 Government Act 2000. with new Sections 14 and 15 only. It was the Government’s view that, while the well-being As a consequence, this means that references to power was intended to be a broad power of first Section 16 elsewhere in statute must be removed. This resort, it fell short of a truly general power; for instance, is achieved by paragraphs 1(2) and 3(2) of the schedule. it did not allow local authorities to participate in The remainder of paragraphs 1 and 3 are transitional mutual insurance arrangements or to act solely in provisions to align with those in the commencement their own financial interests. order and interpretation provisions. Section 232 also The general power of competence provides local replaced Sections 17 and 18 of the 1961 Act with new authorities with the same power to act as an individual. Sections 17 and 18. These make provision for the It has been designed to give councils more freedom to issuing of certificates of appropriate alternative work in new ways with others to drive down costs and development. to give them increased confidence to do creative things. It was brought into effect for all principal authorities Paragraph 2 of Schedule 2 amends paragraph 55 of in England on 18 February in response to the High Schedule 2 to the Local Government Act 1972 to Court judgment against Bideford Town Council. reflect these changes. Paragraph 55 deals with any The order will enable parish councils that meet the necessary consultation arrangements between county conditions set out in the schedule to resolve to use the and district planning authorities. The amendments set general power of competence. This power will equip out in Schedule 3, Article 4, of the order cover them to take on the expanded role that we envisage neighbourhood planning. Part 2 of Schedule 9 to the them playing in our decentralisation agenda and let Localism Act amends the Planning and Compulsory them to do things that they have been unable to do Purchase Act 2004 to provide for a new category of previously. We have been clear that extension of this development plan—a neighbourhood development plan. power to parish councils is conditional. Parish councils These plans will be made by local planning authorities vary greatly in their ability and capacity to take on the on the initiative of parish councils or neighbourhood enhanced role and responsibility of an authority with forums. a general power of competence. The amendments in paragraph 1 of Schedule 3 to A draft of the order before your Lordships today the order amend Schedule 8 to the Planning and was placed in the House Library before debate began Compulsory Purchase Act 2004, which makes transitional in Committee on the then Localism Bill. While this provision in relation to old plans and policies. To order is not identical to the draft placed in the House ensure continuity of a plan-led system, the transitional Library, the differences are drafting amendments to provisions allow for the life of local plan policies to be aid clarity. extended and saved until replaced. Local planning The order under consideration requires parish councils authorities replace the saved polices with new policies to resolve at a full meeting of the council that they in stages as new development plan documents are meet two key conditions to access the general power of adopted. competence. These are that at least two-thirds of the Paragraph 5 of Schedule 8 to the Planning and councillors must hold office as a result of standing for Compulsory Purchase Act 2004 defines a new policy election, rather than being co-opted, and that the clerk as one contained in certain planning documents. The to the council must have obtained relevant training. amendments to Schedule 8 to the 2004 Act will both Once the order is in force, the general power of extend the types of planning documents that new competence provisions in the 2011 Act will be in place policies are contained in to include a neighbourhood for the full range of local authorities intended. At present, GC 181 Localism Act 2011 Order 2012[21 MARCH 2012] Localism Act 2011 Order 2012 GC 182 the Parish Councils (Power to Promote Well-being) I am particularly happy with the general power of (Prescribed Conditions) Order 2008 requires parish competence applying to parish councils. It is absolutely councils to fulfil four conditions to be able to use the right that clerks should be qualified and that there is a well-being power. We are no longer asking that at least clear democratic mandate for the parish to undertake 80 per cent of councillors be trained in use of the the general power of competence. But I have one power, nor are we asking parish councils to produce a question that relates to the duty to co-operate. I seek statement of community intent as to community confirmation that there will be an application of the engagement. The reduction in the number of conditions duty to co-operate. that a parish council must meet to be able to use the One of the issues that arose when we discussed the power, together with the new ability to resolve to use Localism Bill was that neighbourhood planning had the power for the first time following a by-election been addressed from a rural rather than an urban rather than having to wait until the next ordinary perspective. Of course it applies in both. Albeit that election, provides the right balance between democratic 1973 is a long time ago, the consequences of the policy accountability and understanding to enable parish in those days are broadly with us today. In rural areas, councils to make best use of the power. some parish councils were created to lie within what Once a resolution to use the power has been passed, are now urban areas. My concern relates to a failure of a parish council remains eligible until the next annual a duty to co-operate between parish councils and the meeting in a year of ordinary elections—up to four areas around them. years—whether or not the conditions relating to electoral There could, for example, be a situation in which mandate and qualified clerk continue to be met. While parishes have a neighbourhood plan but the adjacent we are keen for parish councils to strive to continue to non-parish area does not have a neighbourhood forum, meet these reasonable conditions of use, there will be or where a parish does not have a plan and the circumstances where, through the loss of a clerk or adjacent neighbourhood forum has been created and elected councillor, the conditions are no longer met. It it does. Or there could be a situation where both the would clearly be impractical for eligibility to be assessed parish council and the adjacent neighbourhood forum on a day-to-day basis. The order also provides for could be contiguous and the plan of one would impact circumstances where a parish council cannot pass a on the other. It is very important that where they both further resolution at its next relevant annual meeting want to have a plan there is clear co-operation between or decides that it does not wish to continue to use the the two. power for whatever reason. Article 3 of the order will There is a whole set of issues around whether urban enable activity using the power that has been started neighbourhood councils or parish councils should be but not completed to be continued. extended. That is for others to decide. But it is important, It is important that parish councillors are provided particularly in the context of the community infrastructure with appropriate advice in taking on the enhanced role levy potentially applying, that a clear duty to co-operate that the general power of competence will enable. We should be imposed on parish councils and on other are therefore keen to make sure that the parish clerk councils in exactly the same way that there is a duty to has the right knowledge, skills and competencies. The co-operate between neighbouring district councils. qualifications that a clerk must hold for the purposes In short, with a general power of competence, it is of this order are based on the approved training for important that there is a general duty to co-operate as parish council clerks set out in the quality parish well. I simply seek the Minister’s assurance that that is council scheme run by the National Association of what is planned. Local Councils. The order also makes provision in case the qualifications themselves are changed or updated. The clerk must have completed the relevant training Lord Beecham: My Lords, I am pleased to join two in the use of the power. As agreed with my department fellow north-easterners in the Minister and the noble and the National Association of Local Councils, the Lord, Lord Shipley, in reviewing these revisions. I certainly Society of Local Council Clerks is currently updating endorse their commending the extension of the general the training material so that, once the order is in place, power of competence to parish councils. parish clerks will be able to undertake the appropriate I do, however, have questions about the detail of training or update their existing qualifications in line the proposals. I confine myself to the second instrument with the requirements of the order. that the Minister proposes. My first question relates to The order will complete the Government’s coalition the provision about the resolution, which will allow a promise to provide a general power of competence for council to proceed with the exercise of the general English local authorities. It will allow parish councils power. The council, having passed such a resolution, is to meet two conditions to use the new power and it is able to continue to exercise that power until the next an important step along the way towards the devolution relevant annual meeting—even if, for example, it loses of power from the centre to the most local tier of local its clerk at some point during that period. I hesitate to government closest to their communities. I commend say so, but parish councils do not have the highest the order to the Committee. reputation for stability in relationships between their own members or between members and clerks. They have been the source of vast numbers of complaints to Lord Shipley: My Lords, I thank my noble friend the now abolished standards board. It is conceivable the Minister for the explanation of these two orders. that a clerk, perhaps because of a disagreement or I will speak to them both because, substantially, I have perhaps simply because he or she moves, leaves a only one point to make. parish council for the greater part of a four-year GC 183 Localism Act 2011 Order 2012[LORDS] Localism Act 2011 Order 2012 GC 184

[LORD BEECHAM] come together to do things together across the piece, period. Yet the council could continue to exercise its serving a wider area than the individual parish? I assume general powers without the benefit of the kind of that it is intended, but it would be as well perhaps to advice which, very sensibly, as the Minister outlined, have that on the record. can be secured through qualifications and training. Is it wise to allow for such a potentially long period? 5pm There is also a transitional provision safeguarding The final question is whether the Government, those who have to deal with the parish council in those through the good offices of the national association, circumstances. I understand this. The Explanatory would encourage peer review of parish councils. It Memorandum states that the provision would ensure does not have to be an elaborate process, but I think that councils, that it would be helpful. We have certainly found it “do not lose the incentive to continue to meet the conditions once very helpful in local government generally, as the they have initially become eligible. It also provides certainty for noble Lord will confirm. Indeed, as we speak, our own third parties in their dealings with parish councils as to the extent authority is undergoing a process of peer review—that of a particular council’s powers”. does not mean by Members of your Lordships’ House; That is the point. It would seem to apply to not just it means, of course, by other comparable authorities. existing projects but new projects to which a parish If that could be encouraged, I think that it would be council, in between the appointment of clerks or helpful to parish councils, their members and their resolutions, might embark upon. Is it all that sensible clerks. Again, without seeking to impose any duty in to make that provision? On similar lines, the Explanatory that respect, it would be helpful if the Government Memorandum points out that if a council does not could indicate that they thought it desirable and might pass at the “next relevant annual meeting”, for whatever enter into some discussions with the national association. reason, a resolution, either because it does not qualify There is one other matter that I need to raise. In the through having a qualified clerk or because it changes impact assessment for general powers of competence its mind, an, published with the Localism Bill—now, of course, the “activity that has been begun but not completed may be continued”. Localism Act—is the following passage: I can see the logic of that, but I wonder about the word “However, local authorities would continue to be obliged to “completed”. Let us suppose, for example, that a follow the law of the land”. parish council decides to undertake the maintenance That is a perfectly straightforward statement. The of playing fields or provide a facility—it could be impact assessment continues: anything from a public convenience to meeting rooms “As an example; our proposals will not enable local councillors or something of that kind. In that example, what does to wage thermonuclear war due to existing preventative legislation completing that project actually mean? If it is a contract, including: the Nuclear Materials (Offences) Act 1983, the Nuclear I can understand it; if it is not, I do not quite understand Safeguards Act 2000 and the Environmental Permitting (England and Wales) Regulations 2010”. how it could be judged to be completed. Therefore, it would potentially seem that something could just continue I seek an assurance from the Minister that those indefinitely, even though the council has either become restrictions will also apply to parish councils, without ineligible or does not pass a further resolution. There which I really fear for the safety of the world. is a possibility for difficulties there. Baroness Hanham: My Lords, I thank both noble The Explanatory Memorandum says: Lords for their comments and their questions. With “The Government’s expectation is that eligible parish councils regard to the last point raised by the noble Lord, Lord will strive to fulfil the conditions at all times”. Beecham, it would probably be proper that parish That is in the motherhood-and-apple-pie part of the councils should be associated with those regulations Explanatory Memorandum. If anything, what do the as well. It conjures up all sorts of possible things that Government have in mind, preferably in conjunction might happen, but it would be appropriate that they with the National Association of Local Councils, to were covered. see that that expectation is fulfilled? I would hope that First, on the point raised by the noble Lord, Lord the national association would be helpful in supporting Shipley, regarding parish councils and their neighbouring the Government’s expectation. Of course, not all councils area, the power would work only provided that they are members of the national association; some have both had powers to do so. So in perhaps part of a deliberately absented themselves from it, including parish, if the neighbourhood did not have that power some of the larger ones—unless they have rejoined because it either was not a parish council or it was not since my time, when I was engaged with them on a neighbourhood forum, that would not work; but as behalf of the LGA. So there is potentially an issue long as it does have that power, they are able to and, there as well. indeed, ought to co-operate, because it seems very There are two other points on which I seek clarification clear to me that that should be what is required. of the present position, or on whether the Government I thank the noble Lord, Lord Shipley, for his support might be interested in pursuing them. The first, in a on that point. sense following the point made by the noble Lord, With regard to what happens when the department Lord Shipley, is whether the general power extends to of a clerk or one of the councils gives up, it is correct councils combining for particular purposes. Would that they would be eligible and able to carry on using the power extend to allowing two neighbouring parish their power until the next election. That was the case councils to set up something jointly in the way that also with the well-being power; there was always an councils in, for example, Greater Manchester have assumption that they could continue. However, they GC 185 Localism Act 2011 Order 2012[21 MARCH 2012] Parish Councils Order 2012 GC 186 will have to continue doing it under their own mandate Lord Beecham: Could you comment on the scope to ensure that they do not breach any of the other for authorities to act jointly? laws. The order recognises that, if there are longer-term projects in train, they can carry on. The noble Lord Baroness Hanham: Under the general well-being asked, “How long is a piece of string?”, and I take his power, they would be able to act together, but, as I said point, but the string is as long as making sure that the to the noble Lord, Lord Shipley, that would be as long project comes to a conclusion. It might be a contract; as they both had the power to co-operate. it might be that a council is deciding whether to make a playground or to ask for the listing of a piece of I hope that I have covered the points made. That land; but they can properly do that and cannot be concludes our work on the order. challenged for it. A council is eligible to complete a project for up to four years if that is the time between Motion agreed. elections. I was asked about peer review. Peer review at the moment is voluntary, being carried out by the Local Parish Councils (General Power of Government Association. With parish councils, I suspect Competence) (Prescribed Conditions) that it would have to be with the co-operation of the Order 2012 National Association of Local Councils—I cannot see anything to stop that happening. As with other local Considered in Grand Committee authorities, peer review is often helpful and often produces some very useful results. However, there is 5.07 pm no legislation to say that it should happen. If a council Moved by Baroness Hanham wishes to do it, and someone in the local associations feels that it is appropriate, it can happen. That the Grand Committee do report to the House that it has considered the Parish Councils Lord Beecham: Would the Minister feel able, in the (General Power of Competence) (Prescribed Conditions) language that government use these days, perhaps to Order 2012 nudge the association into suggesting such an idea to Relevant document: 41st Report from the Joint its members? Committee on Statutory Instruments Baroness Hanham: The most that I can do is to Motion agreed. record the fact that we see the value of it at the moment and it would seem appropriate, therefore, for people to consider doing it subsequently. I think that I Committee adjourned at 5.08 pm. have covered most of the points raised.

WS 57 Written Statements[21 MARCH 2012] Written Statements WS 58

the effectiveness of the multiagency response to Written Statements concerns raised and events within Winterbourne View hospital since January 2008; Wednesday 21 March 2012 the role of commissioning organisations in initiating patient admissions and the role of the regulator; Care Services: Winterbourne View and Statement the operational policies and practice, including the governance arrangements of Castlebeck Care (Teesdale) Ltd. The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My honourable friend the The review is considering information submitted by Minister of State, Department of Health (Paul Burstow), Castlebeck, NHS South Gloucestershire PCT, NHS has made the following Written Ministerial Statement. South West, South Gloucestershire Council and Avon and Somerset Police. I promised to update the House about ongoing activity in relation to Winterbourne View private hospital These reports will feed into the wider departmental and other services for people with learning disabilities. review of Winterbourne View together with evidence from other investigations and reports. The review team The House will wish to note that four people employed is actively engaging with people with learning disabilities at Winterbourne View hospital appeared in Bristol or autism and family carers, as well as with commissioners, Crown Court on 16 March and pleaded guilty to professionals and providers to explore the emerging offences under the Mental Capacity Act 2005. They issues and possible options. have been referred for sentencing reports, alongside the three people who pleaded guilty on 9 February. A The review is considering all the evidence carefully further four people are due back in court after Easter. and assessing the implications for policy and practice across the system, including for commissioners, providers, The Care Quality Commission (CQC) has now professionals, regulators and Government. Everyone completed its focused inspections of 150 services for has a part to play in addressing these issues to help people with learning disabilities. The reports from prevent abuse and to drive up standards for people these inspections are being published in batches, and a with learning disabilities or autism and challenging further 19 reports are being published today. They can behaviour. be found at www.cqc.org.uk/LDReports?latest; 86 inspection reports have been published so far. These While these reviews and inspections are ongoing, reports have found poor practice in some of the units we are taking action to address emerging issues. For and frequent areas of concerns include limited person- example: centred care, limited appropriate activities and a lack CQC has amended its whistleblowing policy; of monitoring and learning from incidents of restraint. the whistleblowing helpline for NHS staff has been Where CQC has identified concerns, the provider is extended to staff and employers in the social care required to inform CQC when its improvement actions sector from 1 January; have been completed. CQC will follow up to check on 18 October, the Secretary of State announced that the improvements have been made, including that the NHS constitution is being updated to include: further inspections where necessary. Where CQC has an expectation that staff should raise concerns at issued warning notices it has been back to inspect and the earliest opportunity; found the locations to be compliant. a pledge that NHS organisations should support In the original proposal for the Learning Disability staff when raising concerns; and Review the plan was to undertake two phases. Phase 1 was the inspection of 150 locations. These inspections clarity around the existing legal right for staff to have now been undertaken. Phase 2 was the inspection raise concerns about safety, malpractice or other of registered services for people with learning disabilities wrongdoing without suffering any detriment; covering a wider range of services than those included we are working on legislation that will require stronger in phase 1, notably adult care providers. local action in relation to safeguarding adults; and However, CQC has taken the opportunity within where issues for local management are highlighted phase 1 to inspect 33 adult social care locations. Following in the NHS review, they will be developing actions discussion at the CQC inspection programme advisory plans to deal with this. group, CQC decided not to proceed with phase 2 at Ministers will report findings from the departmental this time but wait until the national report on the review to Parliament and determine what further action findings from the LD inspection programme had been is necessary. published and then reassess the options. I will continue to update the House as things develop. A programme of thematic inspections is starting this April looking at domiciliary care agencies. This will test the tools for inspecting this type of service so Council Tax they can be used for other care groups. This programme of inspection will focus on older people. Statement Once the criminal proceedings are completed, we expect the Serious Case Review, chaired by Dr Margaret The Parliamentary Under-Secretary of State, Department Flynn, to be published. The Serious Case Review is for Communities and Local Government (Baroness Hanham): looking at: My honourable friend the Parliamentary Under-Secretary WS 59 Written Statements[LORDS] Written Statements WS 60 of State for Communities and Local Government (Bob Debt and Reserves Management Report Neill) has made the following Written Ministerial Statement. Statement Today, my department has published council tax figures for 2012-13 in England. It shows that thanks to The Commercial Secretary to the Treasury (Lord the coalition Government’s council tax freeze initiative, Sassoon): My honourable friend the Financial Secretary the average change in band D bills will be just 0.3%—a to the Treasury (Mark Hoban) has today made the significant real terms cut in council tax. The average following Written Ministerial Statement. band D bill will be £1,444 a year. The Debt and Reserves Management Report 2012-13 I am pleased to inform the House that the is being published today. Copies are available in the overwhelming majority (358 of 421) of eligible local, Libraries of the House. fire and rescue and police authorities in England have decided to freeze or reduce their band D council tax in 2012-13. The take-up rate was 90% among elected Scotland Bill local councils. Participating local authorities will therefore Statement be eligible to receive the additional grant offered by the Government for doing so. Support for hard working families and pensioners The Advocate-General for Scotland (Lord Wallace of Tankerness): My right honourable friend the Secretary This is good news for hard working families and of State for Scotland (Michael Moore) has made the pensioners who previously experienced a doubling of following Ministerial Statement. council tax under the last Administration. This year, The Scotland Bill is a significant step forward in over 20 authorities have also cut council tax between Scottish devolution. It provides for the biggest transfer 0.1% and 3.75%. Indeed, in London, all households of fiscal power from London since the creation of the will benefit from a cash-terms cut in their bills. United Kingdom—including a new Scottish rate of As compared with the typical capping threshold income tax, full devolution of stamp duty land tax under the last Government of a 5% council tax rise, a and landfill tax, and new borrowing powers. Together, freeze saves a typical household up to £72 in each of the OBR forecasts that these measures will enable the the two years of the council tax freeze schemes. Scottish Government to raise between £5 billion and £6 billion of their budget in addition to around £4 billion The Localism Act 2011 abolished central government they currently raise in council tax and non-domestic capping and instead gives local people the power to rates. veto excessive council tax increases in a binding referendum. No authority has reported that it will be Since its introduction in November 2010, the Bill holding a referendum in 2012-13 by setting an excessive has had detailed scrutiny in the UK and Scottish increase. The Localism Act measures will continue to Parliaments. In Westminster, it has passed successfully ensure that local taxpayers are protected in future through its Commons stages and will soon complete years. Lords Committee consideration. In Holyrood, the Scottish Parliament voted overwhelmingly in support Such action on keeping down council tax complements of the Bill last March. the measures already taken to help families—by stopping After productive discussions with the Scottish any council tax revaluation in this Parliament and by Government in recent weeks, the Government are abolishing plans to impose bin taxes on family homes. today announcing a package of measures in the Bill Council tax freeze grant and supporting non-legislative arrangements to show that the powers will operate in a fair and sustainable The Government set aside £675 million to help way to the benefit of Scotland and the rest of the UK. authorities in England freeze their council tax for a Agreement has been reached with the Scottish further year. A local authority that has done so will Government on both the finance and non-finance receive a grant equivalent to a 2.5% increase in its provisions included in the Bill and the Scottish 2011-12 band D figure multiplied by the latest available Government will today table a legislative consent tax-base figure. memorandum recommending that the Scottish Parliament Police and single-purpose fire and rescue authorities votes in support of the Bill on a further Legislative will receive a grant equivalent to a 3% increase. The Consent Motion for the Bill. City of London will receive a grant equivalent to a Today’s announcement provides more detail about 2.75% increase with slightly different arrangements the operation of the new tax and borrowing powers applying to the Greater London Authority (based and about the non-finance elements of the Scotland upon a combination of a 2.75% and a 3% increase). Bill. The Government are committed to: My department will write to individual local authorities Transferring tax and borrowing powers transparently shortly informing them of the amount of freeze grant The Government will ensure that changes in the I propose to pay to them for meeting the terms of the Scottish Government’s budget are closely linked to new scheme for 2012-13. I intend that this one-off the performance of Scotland’s economy by grant will be paid in full in April 2012. All authorities adjusting Scotland’s budget to reflect new tax which froze or reduced their council tax in 2011-12 powers using the model recommended to the Welsh will continue to receive a further grant in each year of Assembly in the Holtham report. This approach, the spending review. agreed with the Scottish Finance Minister and the WS 61 Written Statements[21 MARCH 2012] Written Statements WS 62

Chief Secretary to the Treasury, will help protect additional amendments will be made to the provisions the Scottish Government’s budget from wider on appeals to the Supreme Court from Scottish macroeconomic shocks; criminal cases. A certification requirement will not the Government will work together with the be introduced. However, the new arrangements will Scottish Government over coming months and be subject to a review, chaired by the Lord Justice years to give operational effect to the powers General of Scotland, after three years of operation. including the block grant adjustment in a fair and Certification will be included within the scope of sustainable way, and should reach agreement on all the review, and it will be possible for changes to be implementation issues; made to the arrangements by subordinate legislation following the review. the Scotland Bill will be amended to require the Secretary of State for Scotland and Scottish Ministers These announcements today meet the tests the to produce annual reports to the UK and Scottish Government have set for changes to the Bill package—they Parliaments on the progress of transferring the tax are based on evidence, maintain the cross-party consensus and borrowing powers to the Scottish Government; which supports the Bill, and will benefit Scotland and without detriment to the rest of the UK. in line with long-standing principles of devolved funding, the Scottish Government will pay for their Taxation newincometaxsystemof administration.TheGovernment Statement will explore the scope to offset some of the savings from HMRC ceasing its administration of stamp The Commercial Secretary to the Treasury (Lord duty land tax and landfill tax. Sassoon): My honourable friend the Economic Secretary Ensuring the new borrowing regime is sustainable to the Treasury (Chloe Smith) has today made the Borrowing limits will be reviewed regularly ahead following Written Ministerial Statement. of spending reviews through the Joint Exchequer At Budget 2011, as part of a package of measures Committee; to help motorists facing high petrol prices, the Government the Scottish Government will be given access to announced a fair fuel stabiliser (FFS) that would be loans over a longer period in principle, subject to funded by higher taxation of the profits from oil and the ability to repay and the type of asset; and gas companies when oil prices are high. As a result, the rate of supplementary charge on oil and gas the Government will shortly launch a consultation production is now 32 per cent. The Government also on the Scottish Government issuing their own stated that, if the oil price falls below a set trigger price bonds. on a sustained basis, we will reduce the supplementary Further devolution in the future charge back towards 20% on a staged and affordable Aggregates levy will be devolved once the legal basis while prices remain low. Fuel duty will increase challenges in the European and UK courts have by RPI plus 1 penny per litre in each such year. been fully resolved; and The Government said at the time that they believed the Government are open to considering what further a trigger price of $75 per barrel would be appropriate, powers might be devolved after a referendum on and that they would set a final level and mechanism independence. after seeking the views of oil and gas companies, and motoring groups. Following this period of informal Non-finance elements of the Scotland Bill consultation, I can announce that the fair fuel stabiliser The clauses reserving the regulation of health professions will be implemented with effect from 21 March 2012. and insolvency will be removed, following assurances The trigger price will be set at £45 sterling (being from the Scottish Government that they will work the rounded sterling equivalent of $75 based on the closely with the Government to ensure consistent latest OBR exchange-rate forecast for 2012). The trigger regulatory regimes apply to health professions and price will be fixed in sterling, and reviewed every three that insolvency procedures are kept up to date and years. Whether the trigger price is met will be assessed operate effectively throughout the UK; annually on the first working day of February, starting the clause allowing partial referral of Acts of the in 2013. This assessment will be based on two FFS Scottish Parliament to the Supreme Court will be reference prices: removed at the request of the Scottish Government. the average daily dollar oil price (per barrel) in the This means in the future—as at present—a full Act three months immediately prior to the date of could be referred to the Supreme Court, even if only assessment, converted to sterling using the average a single provision raised competence issues; daily Bank of England exchange rate across the period; and the clause on implementing international obligations will be removed following assurances from the Scottish the average daily dollar oil price (per barrel) in the Government that they will work closely with the week before the date of assessment, converted to Government to ensure that the UK continues at all sterling using the average daily Bank of England times to implement their international obligations. exchange rate across the period. If there is a failure to implement any international Each FFS reference price will be calculated using obligation the UK Government may use their powers the North Sea average reference value as established in under s.58 (2) of the Scotland Act to direct Scottish the Oil Taxation (Market Value of Oil) Regulations Ministers; and 2006 (SI 2006\3313). WS 63 Written Statements[LORDS] Written Statements WS 64

Both reference prices are required to be met for the from 1 October 2012. For approved alterations that trigger price to be met. Thus, under the current tax are already contracted for or under way, transitional regime (ie, with the supplementary charge at 32%), if relief will be provided for supplies made before 21 March at the assessment date either of the two FFS reference 2013. prices is £45 or above, the trigger price has not been The Government have taken this step to address met and supplementary charge will continue to be inconsistencies in the treatment of these supplies and levied at 32%. If both reference prices are below £45, to prevent VAT avoidance that exploits the VAT exemption the trigger price is met. for supplies of self-storage. To protect the public finances If oil prices were at a level where the trigger price from artificial avoidance of the change in VAT liability, had previously been met and supplementary charge the Finance Bill 2012 will contain anti-forestalling were being levied at a lower rate, both the FFS reference legislation to ensure that the VAT liability changes are prices would need to rise to £45 or above for the fully effective. trigger price to be met again. Anti-forestalling legislation will apply to these types Any changes to the rate of supplementary charge of supplies made on or after 21 March 2012. This will and fuel duty that result from the trigger price being ensure that the new VAT liability will apply to these met will be announced at Budget in the year in question. supplies if they are performed (or, in the case of supplies of materials, incorporated in the building) on Taxation: Avoidance or after 1 October 2012, even if the supply is treated as Statement being made earlier than this because of an advance payment or delivery of materials. The new VAT liability will also apply to grants of rights or options made on The Commercial Secretary to the Treasury (Lord or after 21 March 2012 to receive supplies of self-storage Sassoon): My honourable friend the Exchequer Secretary to be provided on or after 1 October 2012. to the Treasury (David Gauke) has today made the following Written Ministerial Statement. While the attached anti-forestalling legislation will apply for supplies treated as taking place on or after The Chancellor of the Exchequer announced today 21 March 2012, any VAT arising from its operation as part of the Budget the removal of the VAT exemption will not become due until 1 October 2012. Until then, for grants of facilities for the self-storage of goods and suppliers should continue to apply the current rules. the removal of the VAT zero rate for supplies of services and materials in connection with approved Further information on the anti-forestalling legislation alterations of protected buildings. This will have effect is available at www.hmrc.gov.uk. WA 165 Written Answers[21 MARCH 2012] Written Answers WA 166

being obtained by means of fraud, false representation Written Answers or the concealment of any material fact; and whether Wednesday 21 March 2012 they have made any assessment of whether the option is being properly and sufficiently utilised. Agriculture: Eggs [HL16410] Question Asked by Lord Laird The Minister of State, Home Office (Lord Henley): Fewer than five people have been deprived of their To ask Her Majesty’s Government, further to citizenship under Section 40 of the British Nationality the Written Answer by Lord Taylor of Holbeach on Act 1981 since 2009. The Home Office is unable to 28 February (WA 337), what is the purpose of disclose any further details as this could breach the contacting the relevant competent national authority department’s responsibilities under the Data Protection for confirmation of whether imported eggs being Act. marketed as class A are from a conventional cage if The deprivation on fraud grounds of a number of that member state is known not to be compliant other individuals is currently under consideration. with the European Union welfare of laying hens Use of the fraud deprivation powers is currently being directive, and whether egg imports from non-European reviewed. Union countries are subject to a similar ultra-violet light analysis. [HL16386] Asked by Lord Laird To ask Her Majesty’s Government whether they The Parliamentary Under-Secretary of State, intend to amend the residence requirements in Department for Environment, Food and Rural Affairs Schedule 1 to the British Nationality Act 1981 for (Lord Taylor of Holbeach): The position in other EU naturalisation as a British citizen to exclude time member states is constantly changing as egg producers spent in the United Kingdom on a student visa in move out of using conventional cages. Although there the qualifying period of five years, or in any other are a number of member states who have not yet circumstances where residence was legal; and whether achieved full compliance, some of their producers time spent in the United Kingdom illegally or without have moved over to more welfare friendly systems of leave is ever counted as qualifying. [HL16438] production. Therefore, contacting the competent national authority is necessary to confirm the production system of a particular producer if the origin of the eggs is Lord Henley: The residence requirements for suspected to have come from conventional cages. Ultra- naturalisation, as specified in Schedule 1 of the British violet analysis is not being used on eggs from non-EU Nationality Act 1981, provide that a person should countries. have resided legally in the United Kingdom for a qualifying period of three or five years. The residence requirements do not specify that the applicant should Bahrain have been here in a particular capacity, meaning that Question time spent in the United Kingdom on a student visa Asked by Lord Patten can potentially count towards the residence requirements To ask Her Majesty’s Government, further to for naturalisation. the Written Answer by Lord Howell of Guildford However, in practice, the circumstances in which on 29 February (WA 31–2), why they do not raise time spent in the UK on a student visa could count individual human rights cases, including that of towards the residence requirement for naturalisation Dr Al Singace, with the Government of Bahrain. are limited. This is because in order to qualify for [HL16235] naturalisation the applicant must also be free from immigration time control on the date of application. The Minister of State, Foreign and Commonwealth Usually, a non-EEA national would achieve this Office (Lord Howell of Guildford): We repeatedly and through a grant of indefinite leave to remain under the consistently raise human rights with the Bahraini Immigration Rules. As student leave is not a route to Government both in public and in private. This includes settlement in its own right it is unlikely that a person raising specific cases, including with European Union who enters as a student can ultimately acquire settlement colleagues, where we think it is necessary and appropriate and, in turn, citizenship unless they become the spouse on humanitarian grounds. We have made it clear to or partner of a British citizen/settled person or meet the Bahraini authorities that the civil rights of opposition the rules relating to long residence. figures, including access to medical care, should be For the purposes of naturalisation, residence in the guaranteed in all cases. United Kingdom should have been legal and not in breach of the immigration laws. This means that in British Nationality Act 1981 general any period of illegal residence will not count Questions towards the qualifying period for naturalisation. The Secretary of State does, however, have the discretion Asked by Lord Laird to overlook a period of breach of the UK immigration To ask Her Majesty’s Government how many laws during the qualifying period in particular people since 2009 have been deprived of their circumstances; for example, if this was inadvertent. citizenship under Section 40 of the British Nationality There are no plans to amend the requirements for Act 1981 by virtue of the registration or naturalisation naturalisation at the current time. WA 167 Written Answers[LORDS] Written Answers WA 168

British Private Equity and Venture Capital The Minister of State, Ministry of Justice (Lord Association McNally): These are different elements of the Government’s constitutional and political reform agenda and there is Question no formal link between them. Asked by Lord Myners To ask Her Majesty’s Government when HM Dogs: Guide Dogs Treasury Ministers or officials last met representatives Question or members of the British Private Equity and Venture Capital Association. [HL16347] Asked by Lord Morris of Manchester To ask Her Majesty’s Government what recent The Commercial Secretary to the Treasury (Lord discussions they have had with the Guide Dogs for Sassoon): Treasury Ministers and officials have meetings the Blind Association regarding the issue of attacks with a wide variety of organisations in the public and on guide dogs by other dogs; and whether they have private sectors as part of the process of policy development discussed this issue with them in the context of and delivery. the Government’s response to the dangerous dogs consultation. [HL16354] The Treasury publishes a list of ministerial meetings with external organisations, which is available at: http:// www.hm-treasury.gov.uk/minister_hospitality.htm. The Parliamentary Under-Secretary of State, Treasury Ministers met with the British Private Department for Environment, Food and Rural Affairs Equity and Venture Capital Association during the (Lord Taylor of Holbeach): Defra has held recent first half of 2011, the most recent period covered by discussions with representatives from the Guide Dogs this published list. for the Blind about attacks on guide dogs by other dogs. All such meetings have been in the context of the formulation of the Government’s proposal to reduce Circuses: Animals irresponsible ownership of dogs. Questions Asked by Baroness Smith of Basildon Elections: Local Government Question To ask Her Majesty’s Government, further to the Written Statement by Lord Taylor of Holbeach Asked by Lord Hodgson of Astley Abbotts on 1 March (WS 125–6) on ending the use of wild To ask Her Majesty’s Government whether animals in circuses, when they intend to introduce individuals who are on the electoral roll and pay legislation to ban the use of wild animals in circuses. council tax are entitled to vote in local government [HL16207] elections. [HL16384] To ask Her Majesty’s Government what estimate they have made of the costs of introducing legislation The Minister of State, Ministry of Justice (Lord to establish a licensing and regulatory regime for McNally): British, European Union and qualifying the use of wild animals in circuses; and when they Commonwealth citizens are entitled to be included in expect such legislation to be introduced. [HL16208] the local government register of electors, provided that the other registration criteria are also met. The Parliamentary Under-Secretary of State, Those criteria are that a person must: Department for Environment, Food and Rural Affairs be resident in the constituency (subject to certain (Lord Taylor of Holbeach): A full estimate of the costs exceptions such as members of the Armed Forces of the proposed licensing scheme for the use of wild registered as service voters); animals in circuses is set out in the draft impact be 18 or over, or become 18 within the lifetime of assessment published as part of the consultation package the electoral register; and on 1 March 2012. A copy is in the House Library. not be subject to any legal incapacity to vote. Regulations to deliver the licensing scheme would There is no direct link between the right to vote and be brought before the House before Parliament rises the liability to pay UK tax. As the Electoral Commission’s for the summer. Legislation for the ban will require guidance to Electoral Registration Officers (EROs) on primary legislation and we are considering how that electoral registration highlights, owning and paying might be achieved. council tax on a property alone is not sufficient to satisfy the residence qualification, although this may give an indication of connection to an address. Each Constitutional and Political Reform decision must be made by the ERO on a case-by-case Question basis. Asked by Lord Dobbs A person registered in more than one place is not permitted to vote twice at a general or European To ask Her Majesty’s Government whether they parliamentary election; however they are eligible to envisage a direct link between proposals for reform vote in local government elections in two different of the House of Lords and proposals for the revision localities, as in doing so, they are not casting more of constituency boundaries. [HL16253] than one vote in an election to the same body. WA 169 Written Answers[21 MARCH 2012] Written Answers WA 170

Energy: Syngas The list complies with all of PACE’s criteria but Question these do not currently include (1) knowledge of public international law, and (2) the ability to hold office for Asked by Lord Berkeley at least half of the nine-year term before reaching 70 years of age. To ask Her Majesty’s Government how many licences they have issued to produce syngas; and what is the estimated carbon content of syngas per Forests unit of energy compared with diesel fuel and power Question station fuel. [HL16470] Asked by The Duke of Montrose

The Parliamentaryy Under-Secretary of State, Department To ask Her Majesty’s Government whether the of Energy and Climate Change (Lord Marland): The value that they place on ancient woodlands is likely production of syngas does not require a licensing to result in more of them being designated as sites process. As at February 2012, two plants producing of special scientific interest as a safeguard to their syngas were accredited under the Renewables Obligation. preservation. [HL16405] The carbon content of syngas will vary considerably, depending on the composition of the feedstock and The Parliamentary Under-Secretary of State, Department the gasification process. Assuming complete combustion for Environment, Food and Rural Affairs (Lord Taylor and a variety of biomass feedstocks, including woody of Holbeach): Compared to other wildlife habitats, biomass and wastes, the emissions for biomass syngas ancient woodlands are under-represented in the sites range from 90-120g carbon dioxide equivalent per of special scientific interest (SSSI) series. Less than 25% of the ancient semi-natural woodland—our most megajoule of energy (CO2e/MJ). Direct emissions from conventional fuels are: important woodland type for wildlife—is SSSI. For most semi-natural habitats the proportion designated Diesel: 74g CO2e/MJ is considerably greater. There are also significant geographical Coal: 95g CO2e/MJ gaps in the coverage of woodland SSSIs. Work to identify which undesignated woodlands have potential Natural gas: 57g CO2e/MJ However, these values do not capture lifecycle emissions. to become SSSIs for their wildlife features is underway In particular, when the emissions absorbed from the and being led by Natural England, in line with its growth of biomass are taken into account, the net statutory duty. It is likely that this work will result in fossil carbon emissions from the combustion of syngas more ancient woodlands being protected through designation produced from biomass feedstocks may reduce to as SSSI over the next few years. zero. Gaza Question European Court of Human Rights Asked by Baroness Tonge Question Asked by Baroness Butler-Sloss To ask Her Majesty’s Government what action they will take following the Israeli missile strikes on To ask Her Majesty’s Government whether the Gaza between Friday 9 March and Monday 12 list of candidates for the office of the United Kingdom March; whether those missile strikes have targeted judge at the European Court of Human Rights, houses occupied by extended families; and what submitted to the Parliamentary Assembly of the assessment they have made of the necessity of Council of Europe, complies with all of the those strikes for Israeli security and of their other Parliamentary Assembly’s criteria, including (1) purpose. [HL16400] knowledge of public international law, and (2) the ability to hold office for at least half of the nine-year The Minister of State, Foreign and Commonwealth term before reaching 70 years of age. [HL16352] Office (Lord Howell of Guildford): On 12 March 2012, following the Israeli air-strikes on Gaza and rocket attacks by Palestinian militant groups on Israel, the The Minister of State, Ministry of Justice (Lord Parliamentary Under-Secretary of State for Foreign McNally): The list of candidates for the office of the and Commonwealth Affairs, my honourable friend next judge at the European Court of Human Rights the Member for North East Bedfordshire (Mr Burt) with respect to the United Kingdom has not yet been released the following statement: submitted to the Parliamentary Assembly of the Council “I am deeply concerned by the recent escalation of violence in of Europe (PACE). Gaza and southern Israel. I condemn any attacks targeting civilians. It has been forwarded for consideration by the I urge all sides to exercise restraint, re-establish calm and avoid Advisory Panel of Experts on Candidates for Election any further civilian casualties”. as Judge to the European Court of Human Rights The incidents on 9-12 March 2012 represent a established by the Committee of Ministers. Once the worrying escalation of violence. Reports indicate that advisory panel has completed its examination the list 30 air-strikes were undertaken by the Israeli Defence will be formally notified to PACE. PACE has requested Force; and 212 rockets and mortars were launched the list by 13 April 2012. from the Gaza Strip by Palestinian militant groups, WA 171 Written Answers[LORDS] Written Answers WA 172 with 95 landing in Israel. At least eight Israelis were Payment of childcare or related expenses can be injured; 26 Palestinians were killed, and several tens of made when unavoidable childcare costs are incurred Palestinians injured. because circumstances demand the normal working There has been an ongoing low level of violence routine is broken. since then, but we are not aware of further casualties. Subsidised play schemes are available during school Our officials are continuing to monitor the situation holidays for children up to the age of 12 for staff in closely and to make representations as appropriate. central London locations. The play schemes are run in collaboration with other government departments to achieve efficiencies in cost. Government Departments: Staff Childcare The Identity and Passport Service and Criminal Questions Records Bureau provide a vouchers scheme contributing to the cost of childcare for children up to the age of Asked by Lord Laird 12. The maximum amount payable per annum is £960 per family. To ask Her Majesty’s Government what provision is made by the Department for Environment, Food Table one outlines for the Home Office and its and Rural Affairs for childcare for employees’ children; agencies total spend on childcare provisions for the and how much was spent by that department on the past five years, dating back to financial year 2006-07. provision of childcare in each of the past 10 years Table two details spend on childcare provision by for which information is available. [HL16294] agency. Where an agency is able to provide spend information prior to 2006-07 this information is provided within the table. The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs Financial information beyond 2006-07 for the core (Lord Taylor of Holbeach): Defra provides nursery Home Office and UK Border Agency is not readily places, both on and off site, plus holiday and out-of-school available and could only be obtained at disproportionate play scheme places as well as supporting childcare cost. vouchers for working parents. Spend on childcare The figures quoted do not take into account employer provision in the core department over the past 10 financial national insurance savings made for the Home Office years is set out in the table below. through the salary sacrifice scheme. These savings offset the Home Office salary sacrifice expenditure. Year Spend Within the requested period the Home Office has 2002-03 £234,408 stopped providing an in-house nursery in Croydon 2003-04 £131,290 (which ceased in 2007) and a holiday play scheme in 2004-05 £148,044 Croydon (which ceased in 2010) on the grounds of 2005-06 £199,660 falling usage and cost. The Home Office continues to 2006-07 £202,488 conduct regular reviews to ensure that childcare provisions 2007-08 £193,674 provide value for money. 2008-09 £294,956 Home Office and United Kingdom Border Agency 2009-010 £100,365 2010-011 £104,499 Table 1. Home Office spend for periods 2006-11 2011-012 (to 09 Mar 2012) £39,051 Year Home Office spend (£) Total £1,648,435 2006-07 359,200 Asked by Lord Laird 2007-08 299,100 2008-09 386,800 To ask Her Majesty’s Government what provision 2009-10 396,700 is made by the Home Office for childcare for employees’ 2010-11 437,000 children; and how much was spent by that department Total 1,878,800 on the provision of childcare in each of the last ten years for which information is available. [HL16295] Table 2. Home Office spend by agency Spend on childcare provision (£) Identity The Minister of State, Home Office (Lord Henley): Core UK Criminal and To complement the Home Office’s policies to encourage Home Border Records Passport employee work-life balance, there are a range of childcare Office Agency Bureau Service Total support options. Year A childcare voucher salary sacrifice scheme operates 2001-02 - - - - - within Home Office Headquarters and the UK Border 2002-03 - - - - Agency. The scheme allows staff to make savings on 2003-04 - - - 91,200 91,200 their childcare costs by taking part of their salary (a 2004-05 - - 18,700 81,500 100,200 maximum of £243), in the form of childcare vouchers, 2005-06 - - 22,500 140,600 163,100 which help to meet the cost of childcare for children 2006-07 41,500 151,200 47,000 119,500. 359,200 up to the age of 16. The vouchers are exempt from tax and national insurance contributions (NIC) and provide 2007-08 31,100 64,800 37,100 166,100 299,100 NIC savings for the employer. 2008-09 35,300 89,000 54,200 208,300 386,800 WA 173 Written Answers[21 MARCH 2012] Written Answers WA 174

Table 2. Home Office spend by agency We continue to call on all parties to respect their Spend on childcare provision (£) responsibilities under International Humanitarian Law Identity and for Israel to respect its obligations as the occupying Core UK Criminal and power. Home Border Records Passport Office Agency Bureau Service Total Asked by Baroness Tonge

Year To ask Her Majesty’s Government whether they 2009-10 20,300 102,500 63,400 210,500 396,700 will make representations to the Government of 2010-11 22,300 105,100 62,200 247,400 437,000 Israel concerning extra-judicial assassinations and their relationship to rocket attacks. [HL16403]

Greece: Financial Support Lord Howell of Guildford: We remain concerned Question about continued indiscriminate rocket attacks by Asked by Lord Kennedy of Southwark Palestinian militant groups on Israel, as well as air-strikes and other attacks by the Israeli military on Gaza. We To ask Her Majesty’s Government whether they raise these concerns with the Israeli Government, have made an assessment of the implications for the Palestinian authorities and other parties as appropriate. United Kingdom economy of the Greek economy Our officials are continuing to monitor the situation defaulting. [HL16334] closely and to make representations as appropriate.

The Commercial Secretary to the Treasury (Lord Sassoon): The Chancellor of the Exchequer has welcomed Libya the progress represented by a second package of assistance Questions for Greece that includes private sector agreement to significant write-downs on the face-value of Greek Asked by Lord Alton of Liverpool sovereign debt. Greece now has to implement the To ask Her Majesty’s Government what action package of reform to which measures it has agreed. they are taking to restore the desecrated Resolution of the Greek situation is only one part of Commonwealth War Graves cemetery in Benghazi; resolving the overall challenges facing the euro area. what information they have regarding those responsible; The Government set out in the Autumn Statement and what is their assessment of the efforts being that a disorderly outcome to the euro area crisis poses made to bring those who were responsible to justice. a significant downside risk to the UK. The Office for [HL16149] Budget Responsibility’s Economic and Fiscal Outlook published in November 2011 sets out the potential The Minister of State, Foreign and Commonwealth channels through which an intensification of the euro Office (Lord Howell of Guildford): Officials from our area crisis could affect the economy. embassy in Tripoli immediately visited the sites and The Chancellor said in his Statement to the House raised this issue with the Libyan Ministry of Foreign of Commons in October 2011 that “the decisive resolution Affairs and the Benghazi chief of police, making clear of the euro area crisis would provide the single biggest our outrage, the need to provide security to the sites boost to the British economy”. and conduct thorough investigations into the attacks. The Secretary of State for Foreign and Commonwealth Israel and Palestine Affairs, my right honourable friend the Member for Richmond (Yorks) (Mr Hague) made clear our concern Questions to the Libyan Foreign Minister in New York on 12 March. Asked by Baroness Tonge Our ambassador also raised our concerns with the Deputy Foreign Minister, the Minister of Interior and To ask Her Majesty’s Government whether they the offices of National Transitional Council Chairman will make representations to the Government of Abdul Jalil and Prime Minister al-Kib. The Parliamentary Israel concerning restitution to Ahmad al Ashqar, Under-Secretary of State for Foreign and Commonwealth whose grocery shop in Beit Lahiya was destroyed Affairs, my honourable friend the Member for North by a missile strike on 2 February, in the mistaken East Bedfordshire (Mr Burt) raised this again with the belief it was a munitions storage facility, as reported Deputy Foreign Minister Abdul Aziz on 15 March by the Palestinian Centre for Human Rights. and stressed the importance of a thorough investigation. [HL16402] In response to these incidents, Foreign Minister Khayyal and Chairman Abdul-Jalil made statements The Minister of State, Foreign and Commonwealth condemning the attacks, and the Transitional Government Office (Lord Howell of Guildford): Our officials monitor published a statement, describing the damage as the situation in Gaza closely. Our lobbying of the “unethical, irresponsible and criminal″ and making Israeli Government focuses on the most urgent issues clear that the Libyan Government “severely denounces including those which pose the greatest threat to a such shameful acts and vows to find and prosecute the two-state solution, to the continuation of the peace perpetrators according to Libyan Law”. The Libyan process or to the lives of ordinary Palestinians. This authorities have instructed the police to make regular specific issue has not been raised with the Israeli patrols and station police outside the cemeteries to authorities. ensure no further attacks occur. On the 15th March WA 175 Written Answers[LORDS] Written Answers WA 176

Deputy Foreign Minister Abdul Aziz gave further National Loan Guarantee Scheme assurances to Mr Burt that the Libyan Government Question shared our views on the attacks and would continue to investigate these crimes. Asked by Lord Myners We understand that four people have been questioned To ask Her Majesty’s Government, further to about the attacks, but that no charges have been the Written Answer by Lord Sassoon on 12 March brought at this time. We will continue to press the (WA 19), by whom the National Loan Guarantee Libyan authorities on the importance of a thorough Scheme will be “independently audited”. [HL16422] investigation to bring the perpetrators to justice. We are in close contact with the Commonwealth War Graves Commission (CWGC) who have confirmed The Commercial Secretary to the Treasury (Lord that they will fully restore all the headstones and the Sassoon): The audit arrangements for the national Cross of Remembrance which have been damaged. In loan guarantee scheme have not yet been finalised. the interim period, temporary markers will be placed Decisions will be made consistent with normal government on the graves. The Libyan authorities have publicly procedure and value for money principles. confirmed that Libya is committed to restoring the damage in co-operation with CWGC. Asked by Lord Laird Prisons: Chaplains Question To ask Her Majesty’s Government why they did not publicly condemn the desecration of Benghazi Asked by Lord Avebury War Cemetery and the Commonwealth War Graves Benghazi British Military Cemetery which occurred To ask Her Majesty’s Government whether, in on 24 and 26 February respectively until 4 March, the light of changes in the prison population, they given that the first attack had been reported in the will hold a consultation about updating the Prison British press on 25 February. [HL16174] Act 1952 to reflect modern ideas on the prison chaplaincy. [HL16383]

Lord Howell of Guildford: The Government condemn the desecration of the Commonwealth War Graves The Minister of State, Ministry of Justice (Lord Commission Cemetery and the Benghazi Military McNally): I hope the noble Lord will agree that the Cemetery. Officials from our embassy immediately Prison Act 1952 has not been a barrier to the development visited the sites on 25 February and raised this issue of prison chaplaincy on a multi faith basis, in order to with the Libyan Ministry of Foreign Affairs and the meet the needs of the changes to the prison population. Benghazi Chief of Police, making clear our outrage, We have no plans currently to hold a consultation the need to provide security to the sites and conduct about updating the Act in this respect. thorough investigations into the attacks. The Secretary of State for Foreign and Commonwealth Affairs, my right honourable friend the Member for Richmond Railways: Reform (Yorks) (Mr Hague) made clear our concern to the Question Libyan Foreign Minister in New York on 12 March. Asked by Lord Berkeley Our Ambassador also raised our concerns with the Deputy Foreign Minister, the Minister of Interior and To ask Her Majesty’s Government how the the offices of National Transitional Council Chairman statement in paragraph 4.6 of Reforming our Railways: Abdul Jalil and Prime Minister al-Kib. In response to Putting the Customer First (Cm 8313) that there is these incidents, Foreign Minister Khayyal and Chairman an option “to place responsibility for train operations Abdul-Jalil made statements condemning the attacks, and infrastructure management in an area in the and the Transitional Government published a statement same hands” relates to existing European Union on 28 February, describing the damage as “unethical, railway legislation. [HL16350] irresponsible and criminal” and making clear that the Libyan Government “severely denounces such shameful acts and vows to find and prosecute the perpetrators Earl Attlee: The Command Paper—Reforming our according to Libyan Law”. The Libyan authorities Railways: Putting the Customer First (March 2012)— have instructed the police to make regular patrols and includes plans for more integrated decision-making on station police outside the cemeteries to ensure no our railways to deliver efficiency benefits, investment further attacks occur. We will continue to reiterate to and improvements in service quality. This includes a the Libyan authorities the importance of a thorough spectrum of options one of which could involve placing investigation to bring the perpetrators to justice. responsibility for train operations and infrastructure The Parliamentary Under-Secretary of State for management in an area in the same hands. This may Foreign and Commonwealth Affairs, my honourable potentially be appropriate on certain discrete parts of friend the Member for North East Bedfordshire (Mr Burt) the network. recently raised this again with the Deputy Foreign No proposals for integration will be accepted unless Minister Abdul Aziz and stressed the importance of a they are compatible with European Union legislation, thorough investigation. He gave further assurances respect competition and fair procurement principles, that the Libyan Government shared our views on the and ensure fair access to rail infrastructure for freight attacks and would continue to investigate these crimes. and other passenger operators. WA 177 Written Answers[21 MARCH 2012] Written Answers WA 178

Railways: Revenue Railways: Traffic Forecasts Questions Question Asked by Lord Bradshaw Asked by Lord Bradshaw To ask Her Majesty’s Government, further to To ask Her Majesty’s Government, further to the Written Answer by Earl Attlee on 13 March the Written Answer by Earl Attlee on 13 March (WA 54), whether the High Level Output Specification (WA 53), in the light of the Department for Transport for the period 2014–19 will aim to cater for the having the revenue risk for the Greater Anglia forecast traffic levels for 2020. [HL16431] franchise, what steps they are taking to ensure that future franchises contain further incentives to reduce Earl Attlee: The High Level Output Specification ticketless travel. [HL16432] will aim to cater for demand to be met between 2014 and 2019 based on traffic forecasts to 2024 and beyond. Earl Attlee: Future franchises are planned to give franchisees a significant degree of revenue risk, especially Taxation for revenue which is dependant on the franchisee’s Questions own initiatives (rather than macro-economic change). Asked by Lord Myners This represents a major change from past risk-sharing mechanisms. To ask Her Majesty’s Government whether they plan to initiate a review of the tax treatment of Asked by Lord Bradshaw general partner returns in private equity and leverage buy-out management. [HL16304] To ask Her Majesty’s Government, further to the Written Answer by Earl Attlee on 13 March The Commercial Secretary to the Treasury (Lord (WA 53), how much revenue risk a train operator Sassoon): The Government currently have no plans bears when a franchise is in revenue support; and to initiate a review of the tax treatment of general how this figure compares to the costs of employing partner returns in private equity and leverage buy-out revenue protection staff. [HL16433] management. Asked by Lord Myners Earl Attlee: Where a franchise qualifies for revenue To ask Her Majesty’s Government whether they support, the operator is entitled to claim up to of 80% plan to review the tax treatment of carried interest of the revenue shortfall against the target revenue set in private equity funds and its impact on the out in the franchise contract. The operator remains on deployment of economic resources to publicly and risk for the balance of any shortfall. The Department privately-owned businesses. [HL16305] for Transport does not have details of the costs involved in employing revenue protection staff which are the Lord Sassoon: The Government currently have no responsibility of individual train operators and will plans to review the tax treatment of carried interest in vary between different companies. private equity funds. Asked by Lord Myners To ask Her Majesty’s Government what is their Railways: Rolling Stock estimate of the additional tax that would be paid if Question the income of general partners in private equity currently taxed at the preferred rate applicable to Asked by Lord Bradshaw carried interest was taxed at the relevant income tax rate. [HL16306] To ask Her Majesty’s Government what analysis they have conducted into the impact of the quality Lord Sassoon: Tax legislation does not provide any of railway rolling stock on regeneration efforts in preferred tax rates for the income of general partners the north of England; what were the results of their in private equity. Amounts received by such partners analysis; and what plans they have to improve the are subject to the normal rates of income tax or rolling stock. [HL16430] capital gains tax, depending upon which is appropriate, as determined by tax legislation and case law. No estimate is available of the additional tax that would Earl Attlee: There has been no specific analysis of be paid if relevant income tax rates were applied to all the impact of rolling stock quality on regeneration such amounts. efforts in the north of England. However, commitments given on electrification will allow additional capacity Asked by Lord Myners through the use of longer electric units and the cascade To ask Her Majesty’s Government what tests are of the existing diesel units which could be used for applied to income to determine whether it qualifies strengthening other services. TransPennine Express as carried interest; and whether they propose to have recently announced the procurement of 10 new review those tests. [HL16307] Class 350/4 units to operate the Manchester-Scotland route. It will be for the future bidders for the Northern Lord Sassoon: There are no tests within the tax and TransPennine franchises to decide their future system to determine whether an amount qualifies as rolling stock fleet strategy. carried interest. However, tax legislation and case law WA 179 Written Answers[LORDS] Written Answers WA 180 determine whether any payment is taxed as income or Train drivers must meet the visual acuity requirements, capital. Carried interest payments are treated as capital including for colour vision, set out in Railway Group gains for tax purposes where they meet the conditions Standards and the Rail Industry Approved Code of of this legislation and are a return on investment. Practice (RACOP) GO/RC3561 on Staff Suitability and Fitness. The timing of the periodic medical Asked by Lord Myners examination to satisfy the RACOP depends on the To ask Her Majesty’s Government what assessment driver’s age at the time of the previous examination, they have made of the economic benefit arising but corresponds to a five year period. from the application of a favourable rate of tax to Any applicant for a certificate of competency to the income of partners in the private equity work on a ship and anyone working on a seagoing ship industry. [HL16308] must hold an ENG1 seafarer medical certificate. An eyesight examination is required for the ENG1 certificate, which must be renewed every two years. Lord Sassoon: Tax legislation does not provide a favourable rate of tax for the income of partners in the Bus and lorry drivers must have their eyesight tested private equity industry. Amounts received by such at their first licence application and when they renew partners are subject to the normal rates of income tax their licence at age 45, every five years thereafter until or capital gains tax, depending upon which is appropriate, age 65 and annually from age 65. as determined by tax legislation and case law. Motorcyclists and car drivers must self-declare that No assessment has, therefore, been made of the their eyesight meets the minimum standard required economic benefit arising from the application of a for safe driving. This is required at first licence application, favourable rate of tax to the income of partners in the at licence renewal, at age 70 and every three years private equity industry. thereafter. The ability to meet the minimum eyesight standard is also checked by the driving examiner as Asked by Lord Myners part of the practical driving test. To ask Her Majesty’s Government whether they Asked by Lord Bradshaw will consider (1) restricting the treatment for tax of the income of general partners in private equity To ask Her Majesty’s Government, in 2008, 2009, funds to private equity funds based in the European 2010 and 2011, how many (1) heavy goods vehicles, Union, and (2) the withdrawal of this benefit where (2) buses and (3) other vehicles were involved in the private equity fund is legally established in an collisions with (a) cyclists, and (b) pedestrians; and offshore tax haven. [HL16346] following each of these types of collisions, how many drivers had their eyes tested immediately following the accident, and of those how many Lord Sassoon: The Government currently have no were found to have defective vision, and were plans to consider changes to the tax treatment of prosecuted as a result. [HL16418] income received by general partners in private equity funds, with reference to the jurisdiction where the fund is based. Earl Attlee: The table below shows the number of (1) heavy goods vehicles, (2) buses or coaches and (3) Transport: Eyesight Tests other vehicles involved in reported personal injury Questions road accidents involving (a) pedal cyclists, and (b) pedestrians injured by these vehicles in Great Britain Asked by Lord Bradshaw between 2008 and 2010. This is the latest year for which this information is available. To ask Her Majesty’s Government how often a person must have their eyesight tested in order to Vehicles in accidents involving retain a licence to operate, fly or drive a (1) plane, (b) (2) train, (3) bus, (4) passenger ferry, (5) heavy Pedestrian, goods vehicle, (6) motorbike, and (7) car. [HL16415] (a) Pedal injured by Vehicle type cycle vehicle Earl Attlee: Commercial pilots must hold a valid 2008 HGV 370 507 joint aviation authorities’ class 1 medical certificate to Bus or Coach 416 1,511 exercise the privileges of their licence. The medical Other vehicle 32,326 25,536 certificate must be revalidated periodically depending 2009 HGV 302 423 on the pilot’s age and type of operation undertaken. Bus or Coach 441 1,357 Eyesight is tested at each revalidation medical examination, Other vehicle 33,850 24,185 either six monthly or annually. 2010 HGV 363 382 Private pilots who require a class 2 medical certificate Bus or Coach 470 1,347 must have this revalidated periodically and pilots must Other vehicle 34,090 23,309 also have a medical declaration countersigned by their GP that confirms they satisfy DVLA standards for driving, including the eyesight standard. After its initial issue a medical declaration has to be countersigned Information on the number of drivers involved in every five years from age 45 and annually from age 65. these accidents who subsequently had their eyesight WA 181 Written Answers[21 MARCH 2012] Written Answers WA 182 examined, the results of these tests, and whether they Earl Attlee: The following figures are taken from Vehicle were subsequently prosecuted is not held centrally by and Operator Services Agency effectiveness report available the Government. from: http://www.dft.gov.uk/vosa/publications/ corporatereports/2010-2011reportsuite/ Transport: Heavy Goods Vehicles corporatereports-2010- Question 2011vosaeffectivenessreport.htm

Asked by Lord Bradshaw Table A1.3 HGV motor vehicle initial test fail rate by age Apr-Feb To ask Her Majesty’s Government what action Age 2011/12 2010-11 2009-10 2008-09 they are taking to reduce the risk to pedestrians and cyclists from heavy goods vehicles; and whether Up to 1 8.1% 8.2% 8.2% 14.1% they are promoting the use of safety schemes such year as that undertaken by the Crossrail project. 2 years 8.7% 8.9% 12.5% 15.8% 3 years 9.8% 11.8% 13.7% 18.9% [HL16416] 4 years 13.1% 13.9% 17.3% 21.7% 5 years 15.6% 17.1% 19.8% 23.8% Earl Attlee: Vehicle construction legislation is adopted 6 years 18.9% 20.0% 22.2% 28.5% at an EU level. European legislation requires most 7 years 23.4% 23.8% 28.0% 34.5% heavy goods vehicles (HGVs) first registered since 8 years 25.8% 28.0% 32.4% 38.7% January 2007 to have improved mirrors and further 9 years 29.7% 31.0% 37.1% 41.8% European legislation requires existing HGVs first registered 10 years 33.0% 35.3% 41.4% 44.6% from January 2000 to be retro-fitted with improved 11 years 36.6% 37.6% 40.9% 47.4% mirrors on the passenger side. This legislation has 12+ years 42.7% 43.4% 45.3% 51.5% been implemented in all member states of the European Total 374,758 425,918 443,493 457,782 Union and applies to most HGVs used for domestic HGV Vehicle and foreign trade. Tests The Department for Transport recently commissioned Total 93,352 108,737 121,365 148,138 HGV Vehicle research with Loughborough University on improving Fails driver vision and this was published in November First MoT 322 329 353 537 2011. The research findings are being used to improve (for fails International regulations on mirrors for new vehicles. only) The reports are available on the Loughborough website PRS 40,137 45,531 52,715 67,248 at: (overall) https://dspace.lboro.ac.uk/dspace-jspui/ Phase 1 = http://hdl.handle.net/2134/8872 Phase 2 = http://hdl.handle.net/2134/8873 (PRS stands for pass after rectification at station and represents vehicles that fail an initial test for a Impact Assessment = http://hdl.handle.net/2134/8874 very minor defect (bulb blown, headlamp aim askew, Furthermore we have recently announced that English screws or bolts loose etc) that are easily rectifiable and councils are now free to use “Trixi”cycle safety mirrors when repaired on location result in a pass certificate.) at traffic signal-controlled junctions: to make cyclists more visible to drivers of large vehicles. Previously Table A1.7 Top ten reasons for HGV motor vehicle fails councils required explicit permission from the department Testable Item 2010-11 2009-10 2008-09 on a case by case basis. Headlamp 11.1% 12.8% 17.3% We welcome the use of safety schemes such as that Aim undertaken by the Crossrail project, where all lorries Lamps 4.9% 5.2% 6.2% are required to meet specific safety standards. We also Service Brake 4.4% 4.8% 5.5% welcome other initiatives such as the Freight Transport Performance Association’s Cycling Code, which it has produced in Brake System 3.8% 3.8% 4.4% collaboration with Transport for London and the Components London Cycling Campaign, and “Exchanging Places” Secondary 2.8% 3.0% 3.5% events; and we encourage local authorities to consider Brake such activities which can improve road sharing. Performance Parking Brake 1.8% 1.9% 2.3% Asked by Lord Bradshaw Performance Speedo-Tacho 1.7% 1.7% 2.1% To ask Her Majesty’s Government how many Bumper-Side 1.5% - - heavy goods vehicles were given an MoT test in Guards 2008, 2009, 2010 and 2011; how many heavy goods Suspension 1.5% 1.5% 1.7% vehicles in each year failed their MoT and how old Steering 1.4% 1.4% 1.8% they were; and of those heavy goods vehicles failing, Mechanism how many (1) were undergoing their first MoT, (2) Mirrors - 1.6% - passed their MoT after initially failing an MoT, and Warning - - 1.6% (3) failed on safety grounds such as tyre and brake Lamps condition. [HL16417] * Failure item figures for 2011-12 are not yet available WA 183 Written Answers[LORDS] Written Answers WA 184

Note: primary concern for a court before which that child Vehicles can fail for one or more items so these percentages appears. We agree and indeed every court in dealing should not be added to produce a total fail rate for with a child or young person is required by Section 44 these items. of the Children and Young Persons Act 1933 to have regard to the welfare of that child or young person. It should also be noted that every local authority Young Offenders: Young Women has a general duty to safeguard and promote the Question welfare of children within their area who are in need; Asked by Lord Judd and so far as is consistent with that duty, to promote the upbringing of children by their families. To ask Her Majesty’s Government what is their Finally the briefing paper recommended that children response to the recommendations made by the All should be kept out of the penal system and all agencies Party Parliamentary Group on Women in the Penal that come into contact with children should be judged System in the report entitled Keeping Girls Out of on how they are achieving this. the Penal System; and what actions they will now We believe that minor offending by under-18s should take. [HL16264] be dealt with by using out of court disposals where this is appropriate and proportionate. In the Legal The Minister of State, Ministry of Justice (Lord Aid, Sentencing and Punishment of Offenders Bill, McNally): The All-Party Parliamentary Group on currently before Parliament, we are revising the out of Women in the Penal System has made three court framework for under-18s and doing away with recommendations to Ministers in its briefing paper the current warning scheme which forces young people Keeping Girls Out of the Penal System. In respect of up through the system regardless of the seriousness of the first recommendation to raise the age of criminal their offending. responsibility in England and Wales, the Government We are clear that custody should be reserved for have no plans to raise this to 14 years. The Government those under-18s who commit serious offences or who believe that children are old enough to differentiate repeatedly fail to comply with community alternatives. between bad behaviour and serious wrong-doing at This approach is underpinned in law. Courts are required age 10. However we accept that prosecution is not by statute to consider a youth rehabilitation order always the most appropriate response to youth offending with a high intensity requirement as a specified alternative and the majority of children under 14 years of age to custody when the custody threshold is reached for who commit crime will be dealt with informally or an under-18. If they still consider custody is warranted with an out of court disposal where interventions can they must explain in open court why a youth rehabilitation be put in place to tackle offending behaviour and order is not appropriate. underlying problems. In respect of monitoring how young people are The briefing paper’s second recommendation is that kept out of the penal system we compile and publish the best interests of the child should be the paramount data on first time entrants to the youth justice system consideration in all matters concerning girls. The UNCRC which enables the Government to be judged on how requires that the best interests of the child should be a young people are being kept out of the system. Wednesday 21 March 2012

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Care Services: Winterbourne View...... 57 Scotland Bill ...... 60

Council Tax ...... 58 Taxation ...... 62

Debt and Reserves Management Report...... 60 Taxation: Avoidance ...... 63

Wednesday 21 March 2012

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Agriculture: Eggs...... 165 Greece: Financial Support ...... 173

Bahrain...... 165 Israel and Palestine ...... 173

British Nationality Act 1981 ...... 165 Libya ...... 174

British Private Equity and Venture Capital Association... 167 National Loan Guarantee Scheme...... 176

Circuses: Animals ...... 167 Prisons: Chaplains ...... 176

Constitutional and Political Reform ...... 167 Railways: Reform...... 176

Dogs: Guide Dogs ...... 168 Railways: Revenue ...... 177

Elections: Local Government...... 168 Railways: Rolling Stock ...... 177

Energy: Syngas ...... 169 Railways: Traffic Forecasts...... 178

European Court of Human Rights ...... 169 Taxation...... 178

Forests ...... 170 Transport: Eyesight Tests...... 179

Gaza ...... 170 Transport: Heavy Goods Vehicles...... 181

Government Departments: Staff Childcare ...... 171 Young Offenders: Young Women...... 183 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL16149]...... 174 [HL16305]...... 178

[HL16174]...... 175 [HL16306]...... 178

[HL16207]...... 167 [HL16307]...... 178

[HL16208]...... 167 [HL16308]...... 179

[HL16235]...... 165 [HL16334]...... 173

[HL16253]...... 167 [HL16346]...... 179

[HL16264]...... 183 [HL16347]...... 167

[HL16294]...... 171 [HL16350]...... 176

[HL16295]...... 171 [HL16352]...... 169

[HL16304]...... 178 [HL16354]...... 168 Col. No. Col. No. [HL16383]...... 176 [HL16416]...... 181

[HL16384]...... 168 [HL16417]...... 181

[HL16386]...... 165 [HL16418]...... 180 [HL16422]...... 176 [HL16400]...... 170 [HL16430]...... 177 [HL16402]...... 173 [HL16431]...... 178 [HL16403]...... 174 [HL16432]...... 177 [HL16405]...... 170 [HL16433]...... 177

[HL16410]...... 166 [HL16438]...... 166

[HL16415]...... 179 [HL16470]...... 169 Volume 736 Wednesday No. 286 21 March 2012

CONTENTS

Wednesday 21 March 2012 Questions Work Capability Assessment: Cancer Treatments ...... 909 Health and Social Care Bill: HIV/AIDS Programmes ...... 910 Criminal Records Bureau ...... 913 Drought ...... 916 London Local Authorities Bill [HL] Commons Amendments ...... 918 Scotland Bill Committee (5th Day)...... 919 Grand Committee Immigration and Nationality (Fees) Regulations 2012...... GC 165 Schedule 5 to the Anti-terrorism, Crime and Security Act 2001 (Modification) Order 2012...... GC 175 Localism Act 2011 (Consequential Amendments) Order 2012...... GC 178 Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012 Considered in Grand Committee ...... GC 186 Written Statements...... WS 57 Written Answers...... WA 165