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Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Lord for giving way. At the risk of giving him a piece of advice, I hope I may tell him that for four years up until last May a certain political party said that it did not believe the polls. That did not turn out to be the case, did it?
Lord Hogg of Cumbernauld: My Lords, I am not saying that I do not believe the polls. I certainly believe that the polls as of today's date represent a shift in opinion. What I am saying is that I do not believe that this Bill when enacted will see those polls translated into reality at the ballot box. That is the difference between us. I am sceptical about taking advice from my good friend, the noble Lord, Lord Mackay of Ardbrecknish.
The point I was making is that I do not believe this Bill will lead to the break-up of the Union. It will build on our traditions of democracy, freedom and tolerance. I believe that it will defeat nationalism because it will rob it of its sense of grievance, and nationalism in Scotland is built on a sense of grievance, and that alone. The Bill expresses the settled will of the Scottish people, as has been said before. I hope that the House will give the Bill its full support, improve it by all means but at the end of the day enact it.
The Duke of Montrose: My Lords, I feel particularly privileged to be able to speak on the Second Reading of this Bill. In declaring an interest I admit, like many other speakers, to one in my ancestry, my residence and my livelihood. Perhaps speaking with a little more relevance, I should say that this year I am president of the Royal Highland and Agricultural Society of Scotland, whose remit takes in all rural affairs.
A couple of weeks ago I took an ancient sword to be displayed in an exhibition commemorating the 700th anniversary of the battle of Falkirk. The sword's history can be traced back to Sir John de Graham, the historical right-hand man of Mel Gibson--I beg your Lordships' pardon; the noble Lord, Lord Hogg, has misled me. I meant to refer to the right-hand man of Sir William Wallace. I say that to illustrate how easy it is for the public to become confused as to whether facts stem from Hollywood or from history. Sir John was killed in that battle. The names of many succeeding generations of my family appear in numerous aspects of Scottish history from the Declaration of Arbroath to the Act of Union and beyond. I am tempted to pick a bone with the noble Lord, Lord Steel of Aikwood, for his rather sweeping statement about the part that bribery played in the passing of the Act of Union. However, I do not think that would advance our cause tonight.
At the present moment ordinary Scots find themselves surrounded by salesmen for devolution in all their beguiling colours. I hear little outside this Chamber of what used to be regarded as one of our great assets, the universally recognised "canny Scot". We hear little of how Scottish pride and independence of character can contribute to the associations and institutions of the whole country to which we as a nation belong.
I was glad to hear the Minister mention that this legislation is taking us into uncharted waters. We are offered new institutions, voting procedures and ways of drafting legislation with almost the same assurance as if they were new washing powder or wallpaper. Those products are at least the result of scientific and market testing. We have been offered some explanation by the noble Lord, Lord Steel of Aikwood, and we have heard the wisdom of the noble and learned Lord, Lord Hope of Craighead, as to the existence of those concepts elsewhere. But the public might have a better understanding of what we are about to undergo if they were described as novel or (dare one say it?) experimental arrangements.
Together in these British Isles we have developed institutions and traditions, industries and economic influence which have at times been an inspiration to the world. I would liken the United Kingdom to a family of brothers. We still need to consider our joint responsibilities for our past, as we do our potential for the future. For one member of the family simply to say, "I am leaving", would not negate our common parentage nor be sufficient to deny all that has gone before, and I personally hope that there is still greater strength in our all continuing to move together.
It would appear that a great many of the issues to be raised in relation to the Bill have inevitably been thrashed out in this House as part of the debate on the Welsh Bill. I noted in particular those raised by my noble friend Lord Crickhowell about the accountability and career implications for civil servants.
Having spent over 30 years in active farm and countryside management, including eight years on the council of the Scottish National Farmers' Union, my concern over this proposed legislation has focused on how it will affect agricultural and rural affairs. In terms of fundamental finance for Scotland, this looks like being the area where the greatest changes will be felt.
Scotland is familiar with the block grant from Westminster as it now stands. But the Scottish Office Agriculture, Environment and Fisheries Department has a budget this year, outside the Scottish Office block grant, of £509 million. Under the arrangements outlined in the White Paper it would appear that £173 million will no longer be negotiated with the Treasury by a UK Minister devoted to Scottish rural and environmental affairs. Is that sum simply to be added on to the present Scottish block grant, or will the sums of money devoted to similar areas in England be totted up together and, by the use of the Barnett formula, whose future cannot be guaranteed, a sum be added to the Scottish block? The agricultural and rural interests, which rely on that funding, will then have to bid, along with all the other demands of the Scottish economy, for what are bound to be fairly scarce resources.
I have spoken to some of those in agricultural education and research who are extremely worried about how what could become a relatively haphazard flow of resources could undermine their long-term viability. That leaves aside the impossibility of knowing for some time yet what the initial sum will be. Just yesterday I was talking to someone in this building who pointed out that that money provides the core funding for a world class biological research industry that provides 10,000 jobs in the Scottish central belt alone.
Other Members of your Lordships' House, notably my noble friends Lord Lindsay and Lord Sanderson, dealt with the question of Europe. I hope noble Lords will forgive me if I return to it briefly. My noble friends spoke of the pitfalls that are likely to be encountered in putting across the case that is required to secure the remaining sum of approximately £360 million of support which it is anticipated will come to Scottish agriculture this year from Europe. That is a not inconsiderable sum. In some ways it bears comparison with the sum which it is thought will be raised through an extra Scottish tax.
Almost by definition, within the European Union at present it is extremely unlikely that agriculture and the environment would ever be seen as matters of sufficient subsidiarity to be devolved to the Council of the Regions. But unless that happens, the Scottish minister for these matters will always been seen in European circles, in whatever role he is asked to speak, as the monkey rather than the organ-grinder.
It is evident that the Government expect there still to be a Secretary of State for Scotland. One or two noble Lords have hinted at the fact that, given the very few responsibilities left, it is uncertain whether they would be adequate to justify a continued place in the UK Cabinet. Will the Minister consider what role that position could still play, and spell it out in rather more detail than is presently being revealed? That is surely the area where more muscle could be available for agriculture, as for other industries already mentioned, which are both Scottish and national industries and whose future is governed from Europe. They might be better served if some aspects of their administration were reserved in the first instance to such an office.
The Earl of Mar and Kellie: My Lords, since I shall speak about history and the future, I ought to mention that among my predecessors were those who negotiated the Union of the Crowns and of the Parliaments and who raised the first rebellion against the Union.
The arrival of this Bill signifies the recognition that the constitution of the United Kingdom is unfair and in danger of breaking up. The main problem is the domination of the United Kingdom Parliament by representatives from England. By that, I mean that representatives from Scotland can be outvoted on Scottish domestic matters, the outcome being that democracy exists only at local level in Scotland. The Bill sets out a means of returning some aspects of national government to Scotland and introduces democracy at national government level for the first time.
The treaty of 1706 was signed between two sovereign, and hence equal, states. Therefore, one must conclude that Scotland entered the Union on a voluntary basis, at least de jure. On the face of it, that is fine. But the reality was that the English state had achieved all that it had dreamed of--the annexation of Scotland in all but name. The Bill puts in place a national parliament and in so doing rights a wrong that has been festering for the past 293 years.
The treaty is in tatters. It has been violated many times and is in need of renegotiation. The Scots of the 18th century made the mistake of seeing the treaty as a written constitution. The catalogue of violations starts with the abolition of the Scots Privy Council and the Scottish Mint in 1708, the imposition of the malt tax a few years later, and the abolition of the post of Secretary
The question for Scots today is this. Is Scotland best served by being in a reformed British multi-national state, or by withdrawal and becoming a small European state? I am happy to accept either verdict so long as my compatriots come to a mature decision about it. It would be wrong to equate the SNP vote, either in an opinion poll or at a general election, with a vote on independence.
This is not a call for a referendum--at least not yet. I am keen that the Bill be implemented and allowed to bed down. I want these reforms to be well tested and therefore I am keen that there be no referendum on United Kingdom membership for at least 10 years. That provides an incentive to prove either that the reforms are the improvement hoped for or that the experience and confidence gained from this limited exercise of national government leads to a desire to take the consequences of sovereign government. It was helpful to have the statistics provided by the noble Lord, Lord Nickson.
Before moving on to the Bill, I have to say that the government of a United Kingdom does not have to be as narrowly defined as it is in the British constitution. There is no reason that there has to be a parliamentary union. The United Kingdom could also be a social, linguistic, economic and defence union. There could be a tax-gathering parliament in Scotland under the crown. That was exactly the negotiating position of the Scottish Parliament in April 1706. It is equally valid now.
So to the Bill. It introduces a devolved parliament to Scotland with this Parliament retaining the right to pass Scottish domestic legislation. That is enshrined in the obscure sounding Clause 27(7). Elsewhere, the Bill gives the right to any Secretary of State to overrule the Scots parliament if it appears that reserve powers or European legislation are being affected by Scottish legislation.
Those powers of the Westminster Parliament I regard as inevitable. It is a scheme of devolution after all. The question everyone will watch for is this: how will this Parliament and its government approach the use of those powers? Will confrontation be sought with the undoubtedly junior Scottish parliament or will the process be one of diplomatic negotiation? A process of advice prior to the third reading of a Scottish Bill would seem to me the best route ahead.
I hope to bring forward amendments concerning the funding of the parliament's environmental responsibilities. These are of greater proportion than the human population would imply. A needs-based assessment rather than a population-based formula is needed. I shall also raise the subject of children's rights-proofing of all legislation and, further to that, raise the subject of remote areas-proofing.
While canvassing to be a candidate for the Scottish parliament in the far north constituency, I came to realise that the anxiety felt in north-west Scotland about the domination of the parliament by the central belt would best be met by a remote areas standing committee, with the task, among others, of commenting on legislation in a rural and remote context.
I also mention my reluctance to see the membership of the parliament reduced in numbers, especially if it affects proportionality. One of the hidden safeguards for the remote areas is that the 129 members, and especially the regional members, give the remoter areas a disproportionately better representation than the central belt. This I approve of. It is a satisfactory way of counter-balancing domination by the more urban and populated areas.
The Bill is designed to define how the Westminster Parliament will act in the governance of Scotland. Therefore, I accept that the way the Scottish parliament will proceed is largely left to the membership to determine. I am surprised that the list of reserved powers includes broadcasting and abortion. In their own different ways, I feel that these are domestic issues and that they should be devolved. Not to have the power to summon the broadcasters to give evidence to parliament just because Clause 24 does not extend beyond the Border seems a travesty, especially when one considers the effect that they can have on the behaviour of the population.
In conclusion, this Bill contains the hopes of the Scottish people. Its enactment will probably reform the United Kingdom sufficiently to satisfy popular demand for Scottish autonomy within British solidarity. Meantime, it will certainly allow the people of Scotland to be seen in a different light in European circles as a re-emergent nation.
Baroness Strange: My Lords, I must declare an interest as being Scottish, having lived nearly all my life in Scotland, where I still live, been to a Scottish school, a Scottish university and my family, the Drummonds, although originally Hungarian refugees, have lived in Scotland for nearly a millennium. I must also admit that my ancestors intermarried with Welsh, Irish and even English so I can claim unequivocally to be a member of the United Kingdom of Great Britain.
As your Lordships may be aware from previous debates, I, like my ancestor who was a member of a Scottish parliament before 1707, have both believed fervently in a united parliament of the United Kingdom. I have always been very much against going back. I voted "No" in the referendum and I am not a convert.
One of the ladies standing outside Errol School with a large placard saying, "Vote 'Yes'", said to me, "I voted for Scotland". "So did I", I said. However, I also believe very strongly in democracy and as a large majority in Scotland voted for a separate parliament--though no one did from my local hairdresser, post office or dentist--I reckon it is my duty to help try to make it work.
Once I was making a special steamed pudding for a lunch party for my grandmother when unfortunately the water got in and turned it all into porridge. However, I drained it a bit, put it in a flat dish in the oven with butter and sugar on top and said it was a sort of creme brulee. It was not as good as it should have been originally, but it worked. I expect King Alfred got away with the burnt cakes by saying that they were a new form of intensive cooking. Indeed, I have often wondered whether the burn in Bannockburn was not referring to a stream, or warriors, as in Anglo-Saxon beorn, but to some culinary disaster with the oatcakes.
Many of your Lordships have referred to current areas in the Bill which will need sorting out in order to make it work. The main problems are, of course, financial, because a new parliament, with the appropriate buildings, infrastructure and salaries of the members as well as their supporters, will all cost money. Some of this money may be raised by taxation in Scotland. There is a suggestion that some may be raised by cutting NHS spending in Scotland.
The Institute of Chartered Accountants in Scotland has also very serious reservations about the drafting of the tax clauses. And, of course, with heavier taxes to pay, new businesses will be less keen to invest in Scotland. It makes sense not to invest in a place where everything is going to cost you more. Already there has been difficulty about Mitsubishi shutting down its TV plant in Haddington. This may be just the tip of the iceberg and nobody who lives in Scotland and loves her wants her to turn into a "Titanic".
There is further the question of land reform. There is a strong bias in the Government's paper against private ownership of land. Having just returned from Bulgaria, which is finding its way out of communism and public ownership, I am very well aware of how public ownership does not work well. I am also aware of the efforts which private owners put into owning and managing land or any other assets. With public ownership, the feeling of personal duty and obligation is very much lessened.
Another area which certainly requires teasing out is that of Scotland's relationship with the European Union. Despite what the noble Lord, Lord Sewel, said when he referred to an enabling commission, Scottish Ministers must continue to attend the EU Council of Ministers as of right so that they do not lose their voice in Europe. My noble friend Lord Lindsay put that point much more pertinently. Agriculture, fishing and development funding are all things that we in Scotland need to discuss at first hand in Europe. They are all vital to our well-being. There is not as yet statutory provision for Scotland to set up a representative office in Brussels or to continue our veto on policies affecting farming and fishing.
Finally, there is the West Lothian question. As my noble friend Lord Weir said, there may in future be dissatisfaction about having here in England a Scottish Prime Minister, Scottish Chancellor of the Exchequer, Scottish Foreign Secretary and Scottish Minister of Defence. Even if the number of Scottish Members is reduced in the English Parliament, the question is still
Lord Ellenborough: My Lords, apart from the distinguished exception of my noble friend Lady Young, I do not believe that any of the previous speakers comes from England. On Second Reading of the Government of Wales Bill, my noble friend Lord Crickhowell mentioned English dogs that bark in the night. One or two of them may have been placed rather far down the list, to speak when most people have gone home.
In all the devolution debates in which I have taken part over 20 years, I have always spoken as a UK Unionist. I am 100 per cent. English but always pro-Scots. I speak as one who is increasingly concerned as to whether there will still be a United Kingdom a decade from now. I am not reassured by the noble Lord, Lord Sewel.
In this Bill and that for Wales, we are debating not just the constitution of Scotland and Wales but that of the UK, which includes England. The Scotland Bill must be one of the most fundamentally important since the war because it vastly changes the way that this country is to be governed and effectively ends our unitary state. It seems important that some speakers from England should express a view.
Scotland is of course perfectly entitled to vote for its own parliament or even for independence, but I believe the vast majority of the population of the UK would view the latter course as an unmitigated disaster and tragedy. It is unbelievable that one has even to contemplate a break-up of the UK, which has been a force for good over two or three centuries, during which time the Scots have greatly contributed in so many ways--one could say, to a disproportionate extent given their small population. That is why, up to now, Scottish over-representation at Westminster and extra expenditure under the Barnett formula have been generally accepted.
I hope and trust that Scotland will not break away, but this Bill is seen by many as another, and so far the worst, example of a politically motivated constitutional innovation in the absence of any clear and considered idea of just where, how far and in what form that process may end for the UK. The Quebec situation has been mentioned. Can one imagine the hair-raising cliffhangers in a few years if that were to happen in respect of Scotland? Whatever the merits or otherwise of devolution, it must be durable. There is no point in bringing forward proposals that are not fair to all concerned--and the proposals are not fair to England. The English not only expect fairness but are just as entitled as the Scots, Welsh and Irish to express their national identity.
The irresponsible weakness of the Bill is that it builds up potential conflict between Scotland and England. The role of the Secretary of State and his influence in Cabinet will be greatly reduced, which will mean that
Government policy has already been rumbled. The idea was to give Scotland a parliament in such a way that it would stop the Scottish National Party in its tracks, but all indications are to the contrary. Devolution has been described as a stepping stone to independence but, judging from recent opinion polls, it is more like a rocket. At the same time, the Government's idea is to shore up their strength at Westminster by using Scottish votes on English legislation and perpetuating the over-representation of Scotland as long as possible. The derisory sop of the potential reduction of 10 or so MPs at some time well into the next millennium--not at the end of this Parliament but at the end of the one after that--is pathetic. In any case, that will only alleviate the problem and, as Mr. Tam Dalyell and others have pointed out, the West Lothian problem goes much deeper than just voting on exclusively English legislation.
An even more serious dilemma is that Scots MPs could in due course determine the political complexion of English Secretaries of State responsible for education, health, the environment and so on. The Scotland Bill, like the Government of Wales Bill, highlights the problem that the Government will not face--how to balance the constitution of all four parts of the Union when they will have a different form of government. Scotland and Wales will be over-represented in comparison with England, and both Scotland and Wales will receive a higher proportion of government spending than in England.
The nightmare scenario of the Union will in all probability arise in five years. I hazard a guess that the SNP will not quite succeed in next year's elections for the Scottish parliament but, after a stultifying four-year period of a Scots parliament run mainly by Scots Labour, it will be a different matter. By that time, there will be the danger of rampant nationalism in Scotland. The Government will have a war on two fronts. By then, it will be blatantly obvious to the poor old English, who are normally so quiescent and slow to be aroused, that their affairs are being unduly and adversely influenced by Scots MPs. Sooner or later, simmering resentment will explode, when a hospital is closed down in Watford or wherever. The problem will initially be disguised by the large Labour majority in England but the Government should not assume that state of affairs will necessarily be the case after the next general election.
The Scotland Bill and Government of Wales Bill are widely seen as part of the Government's policy of fragmenting the UK--moving closer to a Europe of regions and away from the concept of nations. Regional assemblies for England as the Government's answer to the English problem is nonsense. At least the Welsh
Many other ideas must be found if the UK is to survive. Any reduction in Scottish MPs merely alleviates or dilutes the problem; it does not solve it. The possibility has been raised of an English grand committee and so-called "English days" which might work temporarily, but they are riddled with anomalies and great difficulties could arise when, as is often the case, there is a Conservative majority in England but a United Kingdom which is Labour.
I was glad that my noble friend Lord Gray of Contin mentioned the possibility of an English parliament. But he said that that would be extremely costly and complicated and should certainly not be taken lightly. I have a little doubt in my mind that we will need an English parliament and the formation of an appropriate federal structure. Anyone reading the speeches on devolution in another place and the many articles in the press, will be struck by the increasing and substantial support that this has attracted--by no means just from Conservatives. Moreover, there would appear to be a growing acquiescence from the more enlightened Members of other parties that at least only English Members should vote on English matters.
Moving towards a federal structure will mean parliaments in England, Scotland, Wales and, hopefully, Northern Ireland--though were I a Northern Ireland Unionist I would worry whether there would be a UK to which to belong a few years from now. There would be a much reduced role for the UK Parliament which would have reserve powers similar to those proposed under the Bill before us. As has been pointed out, the predominant part--namely, England--would comprise over 80 per cent. of the whole. It has been pointed out that there has been no successful precedent for an arrangement whereby the main participant of a federation was so large. But, equally, so far as I know, there has been no unsuccessful precedent either. Such an arrangement would be more radical, more logical, more understandable and workable than the Labour constitutional quagmire of mishmash which is neither credible nor sustainable.
It may well come to pass that such an arrangement will be the last chance--the long stop, as it were--to save the Union a few years from now. It will certainly be a question of whether the will and determination exist to make it work. As matters stand, I fear that all the seeds of destruction of the Union lie within the Bill.
The Earl of Onslow: My Lords, most of the activities of Her Majesty's present advisers can be regarded by most of us with a certain amount of approbation. Their start has been much better than that I remember of, say, Harold Wilson, or the back end of Edward Heath's term. It is fair to say that most generous minded Tories would say that the victory of the last election, even if over large, was not undeserved, perhaps because the victors
The Welsh have been cajoled into a half-baked assembly. There is talk of changing the voting system in such a way that never again will the British electorate be able to chuck out their masters. There is a promise to further engorge the powers of patronage of the First Lord of the Treasury by allowing him to handpick the second Chamber. Now there is this Bill. I am afraid that the speech of the noble Lord, Lord Sewel, was full of pious platitudes, laden with meaningless phrases such as "concordat", and it certainly showed a lack of the intellectual vigour with which I normally associate him.
What I have to say will probably have less influence on Her Majesty's Government than did Laocoon on the wooden horse of Troy; the process has already started and is already decided. However, it is worthwhile pointing out that the Union of Scotland and England produced over the past 300 years a political unit which was probably the most successful, the most enlightened and the most beneficial to humanity than has been known since the days of the Antonines.
Before 1707 Scotland was poor, fractious and murderous. Mary Queen of Scots was temporarily Queen of the Scots only because the writ of the Scottish Crown was not writ large. England turned down three requests for an Act of Union. The English attitude can be summed up by that of Edward Gibbon who said of Scotland:
Only in 1707 after the death of Queen Anne's last child did the Union succeed because there was grave concern over the possible splitting of the two crowns, with all the terrible dangers that that would present.
What happened next was magic for both England and Scotland. The two countries added up two and two and made five. The Scots governed England. They produced the Edinburgh Enlightenment and the great engineering and industrial might of the 18th century, the Adam brothers, Adam Smith, Raeburn, and a Scottish Peer who could and did outbid the Vatican for the contents of the Orsini Library. Had there been no Union the plains now rich with harvest would have remained barren moors; waterfalls which now turn the wheels of immense factories would have resounded in wilderness; New Lanark would still have been a sheep walk and Greenock a fishing hamlet. Those are not the words of an Englishman, but the words of Lord Macaulay--the greatest of all Scottish historians.
If this Bill goes through and devolution happens--as I regret it will--the Scots will not be able to choose their government; it will be done in an unholy alliance cobbled together by party bosses as a result of proportional representation. There could even be such an unnatural animal as an alliance between the Scottish Tories and the Scottish Nationalists, just to ditch the other lot. That is what happens with proportional
There will be tension between England and Scotland if the Bill goes through. Five years ago one never saw a cross of St. George flying in the street. One now sees it quite frequently. Like the noble Earl, Lord Mar, even though he does not admit it, I am British by country. My country stretches from Cape Wrath to Kent, to Cornwall and to Lough Foyle. I am proud of it and I hope that it stays like that as long as it possibly can. By blood I am a bit Irish and a bit Welsh. I certainly have some Jamaican blood in me and a bit of Devonian blood. I live in England but I am British and proud of it and long may that stay so.
To change the constitution for the benefit, imagined or otherwise, of less than 10 per cent. of the population at the behest of only those 4 per cent. who voted is hardly democratic. England has had no say, and judging by the debate in your Lordships House today, when the vast majority of speakers have been Scots, perhaps she is not yet interested. But, unfortunately, she will wake up and the consequences could well be an English nationalism as petty and mean-minded as that of the SNP.
The West Lothian question does not arise in a unitary state. Nor does it matter that the British Parliament pays £777 more per head to the Scots than it does to the English; nor does it matter that the Scots are over-represented in the British Parliament; nor does it matter that they pay less in taxation; nor does it matter that they get greater subsidy. That is what central and unitary government does. What does matter--this is where my own party has gone wrong and I see no sign of the party presently in government putting it right--is that governments of all parties fiddle about with the height of kerb stones in villages and boss schools about. There is no real local democracy in local taxation and in local authorities. It is that which has caused this unhealthy bout of Scottish nationalism.
After devolution, can it be possible for Robin Cook's successor as British Foreign Secretary to represent a Scottish constituency any more than someone representing a Northern Ireland constituency has held any office of importance in the British Government since partition in 1922? Can one imagine a Scottish Member of Parliament acting as Home Secretary, as Chancellor of the Exchequer, or as Secretary of State for Defence? The English simply will not put up with it. That will be a cause of Scottish resentment and the English will be poorer by it. I do not mind the "Jockocracy" under which we are governed at the moment because it is "Jockocracy" of the Union.
This Bill is a seed bed of secession and of the destruction of the Union. If the present First Lord of the Treasury presides over the destruction of that great Union with his normal elfin insouciance, then his high crimes will be worse than those of Stafford and his misdemeanours worse than those of Montrose.
Lord McCluskey: My Lords, perhaps I may be permitted to begin on a slightly personal note. It is 20 years and three months ago to the day that I had the honour and privilege of replying to the debate on the Second Reading of the then Scotland Bill. I am delighted to see that most of your Lordships are too young to remember that occasion, but those who do, like the noble Lords, Lord Mackie of Benshie and Lord Campbell of Croy, whom I am delighted to see here, and the noble Earl, Lord Onslow, have hardly changed. The three months that followed that debate were for me perhaps the most stimulating and exciting of my entire life. It was a period during Committee and on Report when this House did itself an enormous amount of good in terms of its reputation for examining legislation. I hope that your Lordships will find the next few months as stimulating as we found those few months in Committee and on Report.
In January 1985 I became a judge of the Court of Session in Scotland and since then, as all will acknowledge--perhaps not all--I have been out of politics. For that reason I have to return to Edinburgh before the end of the debate and I tender my apologies to the noble and learned Lord the Lord Advocate for that. I cannot properly join in the full debate, but I want to say something which is a matter of some importance. It echoes to a degree what was said by my noble and learned friend Lord Hope of Craighead. It relates to the appointment and removal of judges.
I have no particular interest in this matter now because I shall retire round about the end of the millennium. I thought I might sit once in the new millennium and condemn someone to death, just to go out with a bang! So I have no direct interest in the matter and I do not suppose I shall be removed under the provisions of the Bill. The 1978 Bill, which resulted in the modest little document, the Scotland Act of that year, contained no provision about the appointment or removal of judges.
Every schoolchild knows that the independence of the judiciary is a vital ingredient of a mature democracy. As my noble and learned friend Lord Hope of Craighead said, the effect of this Bill and this scheme on the administration of justice has hardly figured in the public debates. That is hardly surprising; one cannot expect people to get excited about the removal of elderly judges. The advantage of this House is that it can remedy that. I hope that it will approach this matter as thoroughly as the many other matters of detail about which your Lordships have spoken.
As a result of this piece of legislation, taken along with the Human Rights Bill 1998, the obligation of judges to step into what has hitherto been the political field is greatly increased. My noble and learned friend Lord Hope of Craighead mentioned Schedule 6. He is right to say--and your Lordships should note--that the devolution issues are very widely defined. The judges will have to determine delicate and difficult questions which the legislature cannot possibly foresee about where the boundaries are to be drawn between the legislative competence of a devolved parliament and that of Westminster.
Similar questions arise in relation to the acts of the executive and that includes the first minister. He or she is bound to be exposed to the same temptation as American presidents have been exposed to for the past 200 years and particularly this century. Even a man whom we all admire, Franklin Delano Roosevelt, sought to pack the Supreme Court of the United States because that court was striking down as unconstitutional legislation which he wanted to hurry through. He did not in fact succeed, but all modern presidents have packed the court with their nominees who reflect their political and philosophical views. That temptation is bound to face Ministers. It may lead to politicisation of the judiciary.
We have a strange situation at the moment for this perhaps the most mature and liberal of all the democracies in relation to the appointment of judges. They are appointed by the political power, pure and simple. I meet many lawyers from around the world. Some of them have come to me and said, "We want to tell you about the terrible scandal in our country: judges are appointed by the political power". I have to admit shamefacedly that that is exactly the situation that we have in this country. It seems to work moderately well, but as we advance in a constitutional sense I should have looked in the Bill for some provision whereby that power was diminished. But far from that being the case, it has in fact increased.
At present the judges of the Court of Session are appointed by the Secretary of State for Scotland on the recommendation of the Lord Advocate. When I was Solicitor-General for Scotland and Lord Murray was the then Lord Advocate, we found that the then Secretary of State, William Ross--later Lord Ross of Marnock--was proposing to appoint judges with a kind of minor consultation with the Law Officers. I can say this now. We threatened to resign if that happened. The matter was worked out between the Secretary of State and ourselves. The end result was that the Lord Advocate recommended the name of the judge. He has always had a tremendous independence from the normal political executive. The Secretary of State had the right of veto and that was as far as it went. There was elaborate consultation with the Lord President and perhaps, in certain circumstances, with the Dean of the Faculty of Advocates.
Under this Bill the Lord Advocate disappears from the process altogether and the first minister simply appoints judges of the Court of Session. I hope that this matter will be looked at carefully by the Government and that we are able to return to it in Committee.
The other aspect of the matter is even worse in a democracy and that is the removal of judges. At the moment nobody knows how to remove a judge of the Court of Session. It has never been done. It is thought that one possibility, based on the English model, is to have a resolution passed in both Houses of Parliament, but nobody knows whether that has any validity. Another method would be for the Lord Advocate to present a petition to the Court of Session itself and ask it to exercise its supereminent power the nobile officium. That might work and it might not. In practice, of course,
The relevant provision in this Bill is Clause 89(6), which simply provides that the first minister can remove a judge. There are two safeguards. First, the first minister must specify the ground of unfitness as inability, neglect of duty or misbehaviour. He does not have to prove it; merely to specify it. There then has to be a vote in favour of that Motion by two-thirds of the membership of the parliament. One can imagine circumstances in which the first minister would not have great difficulty in commanding two-thirds of the membership of the parliament. He might thus have considerable power.
At the moment, even for sheriffs and sheriff principals, as the noble and learned Lord, Lord Hope of Craighead, said, under Section 12 of the 1971 Act--in fact, the provision dates back to previous decades--a sheriff cannot be removed unless the Lord President and the Lord Justice-Clerk conduct an investigation into whether or not there has been inability, neglect of duty or misbehaviour. They make a judgment on the basis of unfitness and if, but only if, the judges decide that the sheriff is unfit may the Secretary of State put an order before both Houses of Parliament. Each House has the right to annul that order. There is thus the involvement of a bicameral legislature and a powerful investigation, independent of the Executive. Under this Bill those elements will disappear. It is a curious feature of this Bill that, as it stands, the protection afforded to sheriffs survives, but the judges of the Court of Session may be removed by the method that I have described.
I consider that it is of the greatest importance that before the first minister lays before the parliament a Motion for the removal of a judge, whatever the majority he may need to pass that Motion, there has to be an independent investigation. There may be good reasons why the Lord President and the Lord Justice-Clerk are not the right people to conduct that investigation because they deal with the judges every day. At the moment we have half a dozen excellent people who could conduct that investigation, such as the noble and learned Lord, Lord Mackay of Clashfern, a retired Scottish judge; Lord Ross, the former Lord Justice-Clerk and a member of the Privy Council, and the noble and learned Lords, Lord Jauncey of Tullichettle, and Lord Keith of Kinkel. Indeed, there are several other judges who could carry out such investigations, some of whom are so young that they are younger than myself. As I have said, there are at least half a dozen, any two or three of whom could be selected by the first minister, just as the Secretary of State today selects judges for such tasks, who could conduct the investigation. If, and only if, they report that there is an unfitness for office should the first minister then remove that judge, following a vote in the parliament.
Those are issues of great constitutional importance. While I have been a Member of your Lordships' House, this House has always prided itself on concerning itself with constitutional issues because it has a strong sense of the constitution. I hope that, even if I am unable to
Lord Rotherwick: My Lords, this Bill is the result of a referendum in which all those resident in Scotland and on the electoral register there were entitled to vote. People born in Scotland but registered elsewhere were not so entitled; nor were people registered in England, Wales and Northern Ireland. That decision by less than 45 per cent. of Scottish residents will have an enormous impact on the rest of us. That is an interesting figure because, as the noble Lord, Lord Hughes, pointed out, it is the same as the percentage of noble Lords from Scotland who signed up to the Union. We must ensure that the resulting legislation is not only good legislation but that it contains adequate safeguards to protect the Union which is the United Kingdom. This Bill threatens that Union and UK Members have a duty to seek answers to the questions posed by it.
Twenty years ago Tam Dalyell first raised the West Lothian question, as so many noble Lords have said. We are assured in the press that Tony Blair, the Prime Minister, has determined that the extra representation granted to Scotland will be withdrawn, but that still leaves the problem of Scottish MPs who can vote on English home affairs when English MPs have no reciprocity. No one should doubt that the West Lothian question will return to haunt us over and over again unless we remove it now. An article in that most Scottish of newspapers the Glasgow Herald stated that to cut the number of Scottish MPs might dilute the West Lothian question but would not solve it. The probity of our legislature is in doubt if the Government use their present majority to ensure their future control of English home affairs by insisting that, while only the Welsh assembly and the Scottish parliament will enact legislation for their respective countries, all Westminster MPs may vote on English matters. This is not fair to the vast majority of the people of the Union and must be addressed.
The raising of taxes is an unpopular activity at the best of times. When they are not raised universally, and with the approval of a mere 38 per cent. of the affected population, they rankle, and eventually resentment spills over into action. Our history books are full of it. Scottish income tax, which is certain to be about 3p in the pound, will be levied on all those present in Scotland at the beginning or the end of the day for four or more days in a week. That leads to some anomalies.
I take the hypothetical case of A who lives and works in Scotland and obviously pays Scottish tax and the case of B who lives in England, works day shifts in Scotland and will not pay the tax. Let us take the case of C who lives in England, works permanent nights in Scotland and does not pay the tax either. However, if D lives in Scotland and has a sales territory which means that he is in northern England for, say, five days and four nights but is present in Scotland on Monday morning and Friday evening, he is deemed to be in Scotland for four days and is liable to pay the tax. We then consider the
One wonders how long such a state of affairs will subsist before there is an exodus south of the Border. How long before house prices in Berwickshire go up? How long before overseas companies find it preferable to locate elsewhere? How long before it becomes obvious that 3p in the pound no longer returns £450 million per annum? Will we not soon see people moving across the Border to live, thus adding to the problems of the Government, who, quite rightly, wish to reduce the amount of commuting by the people of this country? Will the tax also be applied to UK servicemen who as part of our Armed Forces are required to live on bases in Scotland? Will they have to pay it and claim it back from the MoD at a later time?
That takes me to the liability of Westminster to underwrite the Scottish experiment. Will the Treasury have to fork out if the tax yield is less than the target? Will it have to fork out if the target is found to be too low? Further, will it have to fork out if the revenue is on target but the Scottish parliament is spendthrift, similar to some west coast local authorities? Should there be a boom in Scotland resulting in a return of some of the £450 million, will the Secretary of State slice the extra from the block that he pays to Scotland?
Noble Lords have already referred to the Scottish block grant. Every Scottish resident receives approximately £4,505 a year compared with the English equivalent of £3,604. In 1996-97 the block grant for Scotland amounted to approximately £14.3 billion. Government spending per head was 23 per cent. higher than in England. I calculate that if that difference were removed, the Exchequer would have a further £2.7 billion to spend on, say, transport the building of hospitals or giving students their grants back. That was most adequately pointed out by my noble friend Lady Young.
Finally, I turn to a matter about which I am most concerned. In an echo of that once loved radio game, I am an English animal with strong Scottish connections--or perhaps I should speak of a UK animal. I am proud to be a member of the United Kingdom. But while I believe that we should recognise and honour the desire of the Scots to have a greater control over political matters Scottish, I am adamant that we should act to sustain this union. It is likely that the Labour representation in Edinburgh will be less than that of the SNP on its own, and highly likely that it will be less than the SNP coupled with the Conservatives and/or the Liberal Democrats. The central plank of SNP ideology is independence for Scotland; and its favoured method of attaining it is a referendum. I have already quoted Tam Dalyell. He is an arch critic of devolution and was quoted in the Guardian last August as comparing the Scottish Parliament to,
A straw poll of some university trained business people from Dublin yielded the opinion that within 10 years Scotland will be in the same shape as Ireland in the 1930s. In the face of that consensus I fear that legislation could become a Petri dish for the culture of the bacterium of civil unrest. My unease is worsened by the concurrent experiment with proportional representation which in other countries and at other times has brought vigorous minorities to the fore. I was somewhat uncomfortable with the comment made by the noble Lord, Lord Thomas of Monifieth, who spoke of devolution democracy. I understand there to be closed lists, and I can only see it as a second rate democracy. Should I be comforted by the Minister talking about people having "access easily"? How can one have "access easily" with concordats and closed lists?
The Bill must contain safeguards to ensure that no Scottish parliament can destroy the union of our nations by voting internally for independence. If that were to happen, this Government would be responsible, and future generations would hold them accountable for the consequent suffering and dislocation. Scotland's place in the Union is deeply valued. There is no evidence that the remainder of us wish the UK to be fragmented. Forty-five per cent. of Scotland has decided to have a larger measure of control over its own affairs; and so be it. But in doing so its people should acknowledge the pre-eminence of the Union, confirm their continuing allegiance to the monarchy and acknowledge the mutual dependence of the nations of this United Kingdom.
Lord Belhaven and Stenton: My Lords, in my opinion this Bill, along with the other measures being brought forward by Her Majesty's Government, such as the proposed emasculation of your Lordships' House, is a step in a process which will result in the dismantling of the United Kingdom. It took many hundreds of years of terrible and destructive wars to lead our forebears, Scottish and English, to the conclusion that it would be best for this island to be united under one flag and one parliament. In 1707, some including my predecessor, the second Lord Belhaven, disagreed with that. But that was then. It is open to question what their views would be now. What can be said is that one of the most successful and benevolent constitutions which the world has even known is now in grave danger.
We should not have let Europe influence us in these particular decisions, but we have. In that regard, we do not need to take any lessons from France, which has had nine constitutions since 1789. We do not need any from Germany, which has had four constitutions since 1918, or from Spain, which is only just settling after a bloody and horrible civil war. I shall not mention the others. I say only that if the intention is to divide up this island on the basis of the German lander, we are asking for trouble.
The noble Lord, Lord Sewel, said that those who disagree with the Government's present policy are working against the Union. I find that an astonishing statement. It seems to me that it is a classic example of turning the facts upside down. It is the Government who are breaking the Union, not those of us who disapprove of this legislation.
However, given the present state of popular opinion in Scotland, something had to be done by whichever party was elected in the election last year. There is clear dissatisfaction with the status quo in Scotland. It is mistaken in my view, but undoubtedly it exists. I am inclined to agree with my noble friend Lord Tebbit that the referendum should have been on independence. To paraphrase Dr. Johnson, when a man is to be hanged in the morning he concentrates his mind wonderfully.
A clear option would have been fairer to the Scottish people--and I say that because I believe that this Bill will lead to independence. I realise that my noble friends, such as Lord Mackay of Ardbrecknish, who live in Scotland are now rightly dedicated to making the unworkable work and I wish them well. But as an independent Member of your Lordships' House, I have to express my view that it is unlikely to work.
I have always thought that there were only two consistent options for Scotland; independence or the status quo with as much devolution as the system can bear, which is more or less what we have had until now. In my view, this Bill should make provision for a further referendum on independence. If the vote is against independence it will, it is to be hoped, calm the wilder elements in the Scottish parliament. And if it is for independence we know where we are going and half the Cabinet will have to resign.
I regret all this. In 300 years our two nations have become very closely intertwined. How many English people have your Lordships met who confessed to having a Scottish grandmother? Very many, I guess, if their experience is the same as mine. Many people will find themselves living on the wrong side of the Border, as happened in Czechoslovakia. I am of their number, having lived in England since 1981. I do not think of myself as a foreigner here and English people living in Scotland ought not to think of themselves as foreigners there. Independence for small nations reduces the independence of the individuals who live in them. It may be fun for the politicians and nationalistic idealists, but it is a good deal less fun for the rest of us; a fact which most Scottish people have yet to grasp. It should be brought home to them.
Perhaps I may point to one possible consequence of the Bill which may not be all that far in the future. At present the Labour Party enjoys an unprecedented majority in the other place. But let us suppose that the Government are returned to power in the next election purely because of the Scottish vote. That means that England will have a Conservative Government but for the Scots. What happens then? Are English matters to be overridden by the Labour majority while the Scots have their own opt-out in the event of a Conservative Government? I realise that the English are the most tolerant people on earth and slow to wrath, but there are
What I fear most is that that movement towards separation will create enmity between the Scottish and the English, an enmity which died nearly 200 years ago. For the first time in my life, I sometimes feel it is better, when living here, not to say that I am Scottish.
I notice also something which my more parochial and inward-looking fellow Scots might have missed; that is, the growth of English nationalism referred to by my noble friend Lord Onslow. The St. George's Cross is seen more and more in place of the Union Jack. In case no one has noticed, that is a direct response to the growth of Scottish nationalism and with the past few days in mind, I should say that English nationalism is not the explicit preserve of football hooligans. Many of my English friends and neighbours who have no interest in football are becoming increasingly nationalistic; and I do notice that.
The new assembly is supposed to bring government closer to the Scottish people. One must hope so. It will certainly increase the size of government bureaucracy under which the Scottish people will be expected to live. Every Scot will have two MPs--a privilege denied to the English and a doubtful privilege at that. On top of that, there will be Brussels. So I am wrong. There will be three MPs. I hesitate to give advice as to who to write to and which surgery to attend. But I congratulate the Scots. Surely in the whole of history no one has had such a galaxy--or should I say trinity?--of representatives. Whether that brings government closer to the people or on top of the people, only time will tell but it will undoubtedly be expensive.
Then there are the local councillors. All those men and women bring a huge baggage of bureaucrats and hangers-on, all paid, with them. I realise that my noble friends who live in Scotland must decide to make the best of a bad job and to try to make this work. From the southern side of the Border, while I wish them well, I cannot for the life of me see how it can work. In the end, it will please no one, north or south, and then we shall see.
Lord Dean of Beswick: My Lords, I am one of the few Members from the English regions who has dared to test the waters in this debate. I should say immediately that although I am a former leader of Manchester City Council and a former Leeds MP, I am not speaking in that capacity. I am presenting my own views as I see them.
I am rather concerned. In some respects, I was hurt by the fact that I am supposed to support a measure of this importance without having a say in it until it reached your Lordships' House. Any move which can dismember the Union in which I have grown up is a matter for 50-odd million people, not 5.5. million people.
Your Lordships may ask why I have a gripe about that. I shall tell you. Nobody has yet said what this exercise will cost. Perhaps I may return to an exercise which the last government undertook, if your Lordships would like some relevant costs to look at. Those costs are much less than the ones we are talking about here. Mr. James Prior, the then Secretary of State for Northern Ireland, instituted a Northern Ireland assembly. Let us look at what was paid to each member of that assembly. Most twin-tracked and were Westminster Members and also members of the assembly. It was decided to pay them two-thirds of a Westminster Member's salary, two-thirds of his expenses and two-thirds of everything else. We ended up with the most peculiar situation whereby the highest paid man in Parliament was the late Mr. James Kilfedder, because in addition to twin-tracking and therefore receiving one and two thirds salary and expenses as a Member of the other place and as a member of the assembly, he received also two-thirds of the Speaker's salary because he was the Speaker of that assembly.
I do not know what the total cost of that exercise was but it will have been much less than this exercise will cost. I believe that the House is entitled to know what is envisaged. There is nothing in the Bill about what people will be paid and what will be available for them to draw. I could, of course, concur and ask, "Well, what's it got to do with me?"--but I shall tell noble Lords what it has to do with me.
In opening the debate, my noble friend the Minister said that there was no intention to interfere with the present financial arrangements. But what did he mean? Was he referring to the equation for last year, or what will be paid next year as the block grant? Does he mean that the costs for this exercise will come out of that block grant?
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