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House of Lords

Tuesday, 19 January 2016.

2.30 pm

Prayers—read by the Lord Bishop of Derby.

Introduction: Lord Mair

2.38 pm

Robert James Mair, Esquire, CBE, having been created Baron Mair, of Cambridge in the County of Cambridgeshire, was introduced and took the oath, supported by Lord Oxburgh and Lord Rees of Ludlow, and signed an undertaking to abide by the Code of Conduct.



2.43 pm

Asked by Lord Naseby

To ask Her Majesty’s Government what action they propose to address the threat of a drone being flown into a commercial jet or being used to launch a terrorist attack, as highlighted in the recent report of Detective Chief Inspector Colin Smith.

Viscount Younger of Leckie (Con): The Government recognise that this emerging technology creates exciting opportunities for the UK economy, but also new risks for security and safety. A cross-government working group is undertaking a detailed analysis of this emerging threat, including the risks of the use of drones for terrorism and criminal purposes. This work is ongoing and kept under constant review. Initial guidance on tackling the risks has been provided to constabularies across the UK.

Lord Naseby (Con): As my noble friend will realise, as a former RAF pilot I have looked at what is happening around the world. All the leading countries—the USA, Canada, Australia, New Zealand, France and even Ireland—now have restrictions on drones. We can add to that that drones in a world of cyberwarfare make problems even more relatively difficult. In the light of the Hostile Drones report, which makes chilling reading, will my noble friend confirm that the Government will act with real urgency, perhaps guided by the latest US registration scheme launched in January and Ireland’s—dare I mention it?—SI 563 of 2015?

Viscount Younger of Leckie: My Lords, I am aware of the Hostile Drones report. It is informative and generally well written, and chimes very much with the work being undertaken by the cross-government working group. As for licensing, which my noble friend mentioned, particularly in the US and Ireland, the Government and the CAA are talking to the US Federal Aviation Administration and the Irish Aviation Authority about both schemes. I would, however, add a caveat that such schemes are only as good as the enforcement mechanisms behind them.

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Lord Berkeley (Lab): My Lords, it was interesting that the Minister said that this is an exciting project. It certainly is an exciting project to keep under review while drones might get into the suction of an air engine when a plane lands at Heathrow. It is nice to know that it is under review, but what can the Government do about catching these drones, short of firing missiles at them?

Viscount Younger of Leckie: Indeed. This is an important issue because the technology is growing at such a pace. We are undertaking a review of how drones will be controlled from a safety perspective, while looking at the opportunities at the same time.

Baroness ONeill of Bengarve (CB): My Lords, will the cross-government working group also consider the capacity of drones to infringe people’s privacy by photographing them in their houses, their gardens or wherever they may be? What enforcement mechanisms might be envisaged there?

Viscount Younger of Leckie: Again, that will be part of the review. When we talk about infringement of personal space, as a matter of good practice, drone operators that process personal data should inform individuals affected of their identity. Operators of drones that collect personal data must comply with the Data Protection Act, unless a relevant exemption applies. We believe that the law is tight in this respect.

Baroness Randerson (LD): My Lords, Colin Smith asserts that there are almost weekly incidents that endanger air passengers because drones fly into the path of aeroplanes, whether deliberately or by accident. What assessment have the Government made of this risk? Do they believe that we now urgently need to update the licensing and training processes relating to drones?

Viscount Younger of Leckie: We are aware of the advance of the technology. The Government are looking urgently at the issues involved. It would be a mistake to rush into legislation at this stage, but it is important to look at all the facts. We are due to report at the end of September on the consultation in this respect.

Baroness OCathain (Con): My Lords, why has there been such a delay in getting this consultation together? There was terrific euphoria when the report was first published in March last year and the Government gave a very positive response to it within 13 days. What has happened between then and now? [Laughter.] It is not a laughing situation. The tracking and tracing of drones is so important and we have to get on with it. The consultation will be 12 months later than we thought.

Viscount Younger of Leckie: First of all, I salute the work of my noble friend Lady O’Cathain and all other members of EU Sub-Committee B. It is true that the Government responded quickly within 13 days and it is an important subject. However, it is wrong to rush into legislation, and it is right not only to understand what the public think about the operations of drones

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but to undertake this full 12-week consultation. The Government are also publishing their own strategy in September, notwithstanding any EU timetable.

Lord West of Spithead (Lab): My Lords, the Minister says that this will come up in due course, or towards the end of the year, but we initially raised the issue of drones way back when we were preparing for the Olympics. There was great difficulty getting a cross-party group set up. Two years ago we were warning of the real risks from terrorism for aircraft. We really must move on this now. There are now highly capable drones that can carry a substantial weight, which you can buy for £2,000 from a supermarket. You can buy whole groups of these. They can also do intelligence-gathering. This is a very real risk and we need to move on it. Would the Minister not admit that we must really make something happen as soon as possible this year?

Viscount Younger of Leckie: Indeed, I think I have outlined exactly what we are doing. It is important that we look at the facts first and then come back with a full report by September, which is not too far away. However, we are not being complacent about the safety issues and the risks concerned.

Lord Tebbit (Con): My Lords, should we not require that any person should have a licence before he may be permitted to buy or operate a drone?

Viscount Younger of Leckie: Yes, it is something that is on people’s minds. Of course, the US and Ireland are operating such a scheme but, as I said at the beginning, the question is: can this be enforced? This will also be part of the important review that we will carry out this year.

Lord Hylton (CB): My Lords, does the noble Viscount know that this is the third time for me to raise this subject, and that I have had encouragement from the Royal Society for the Prevention of Accidents? Will the Government ensure that there are total exclusion zones for drones wherever aircraft are taxiing, taking off or landing?

Viscount Younger of Leckie: Yes, and, indeed, the police are very much involved in this. There is a trial being undertaken at the moment around Gatwick Airport. The police are very much part of this, undertaking trials to work out how drones can best be used around public areas.

Farming: Basic Payment Scheme


2.52 pm

Asked by Baroness McIntosh of Pickering

To ask Her Majesty’s Government what percentage of the Basic Payment Scheme was paid to farmers by the end of December 2015, and what assessment they have made of the delivery mechanisms of that funding.

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Baroness McIntosh of Pickering (Con): My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I refer to my interests in the register.

Lord Gardiner of Kimble (Con): My Lords, I declare my farming interests as set out in the register. The Rural Payments Agency began making full payments on the first day of the payment window and by the end of December had paid 51% of eligible claims. It remains on track to pay the vast majority by the end of this month. Rural Payments, the IT system, has been used to process claims and make payments for 2015, and is working well. It will continue to be used for 2016 and beyond.

Baroness McIntosh of Pickering: I am grateful to my noble friend the Minister for that reply. Will he explain what “the vast majority” means in numbers? How will those farmers who have not yet received a letter saying that they will not be paid know when they will be paid? Will he look particularly at any delays that have been caused for those farming common land through issues relating to mapping and registration of rights?

Lord Gardiner of Kimble: My Lords, I do not think that I am in a position to say what exactly “vast majority” means. However, I can tell my noble friend that as of yesterday the RPA had paid more than 57,700 claims—that is two-thirds of the total and some £779 million—and is now clearly focused on paying the remainder as soon as possible. My noble friend is absolutely right that one area where there is a likelihood of payments being somewhat later is that relating to common land, but the RPA is using all its endeavours to get the final payments out as soon as is possible.

Baroness Miller of Chilthorne Domer (LD): My Lords, does the Minister agree that the agri-environment element of the payments has particularly lagged, leading to a fear that there will be a widespread exit of farmers because they simply cannot afford the conservation measures to maintain biodiversity or soil care—all the things that the Government are counting on?

Lord Gardiner of Kimble: My Lords, it is clearly important that agri-environment schemes are well supported as well as the basic payments. I think that the percentage of the latest agri-environment schemes that have been paid has been particularly high, but clearly we need to encourage as many farmers and landowners as possible to ensure that the good custodianship of the land is very much to the fore. I am confident that almost all do.

Lord Christopher (Lab): My Lords, this matter is raised in this House year after year. However, to my recollection, we have never had an adequate explanation of why it happens year after year. The present situation is that the only country in the United Kingdom which is anywhere near closure is Northern Ireland; Welsh hill farmers are desperate for the money. Why does it happen year after year after year?

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Lord Gardiner of Kimble: My Lords, I can understand and, with my farming interests, have some sympathy. However, in the past two years 90% of single farm payments were made in the first month. The reason there is a difficulty this year is that the CAP was reformed. It is therefore, unfortunately, extremely complicated. The Government are now negotiating simplifying the CAP. That is why we have got this situation across the United Kingdom this year. However, I note what the noble Lord said about Northern Ireland.

The Lord Bishop of Peterborough: My Lords, I speak as one who, until very recently, has been privileged to serve as a trustee of the Farming Community Network, which supports many farmers with difficulties of this sort. Is the Minister aware, as FCN certainly is, that many of those who have been told they will not receive their payments until after the end of this month—more than two months late—are farming in upland areas, not just common grazing, and are often the poorest farmers in the most need? Is it possible for at least some payment to be made on account? Can the Government assure noble Lords that payments will be made on time, and in full, in the next cycle?

Lord Gardiner of Kimble: My Lords, there are regular discussions with, for instance, the banks and with HMRC about those farmers who will be in difficulties. I endorse what the right reverend Prelate has said: many charitable organisations work with the Government and we wish to support them as much as possible. I believe that next year the lessons will be learnt from what has happened this year. I very much hope that the RPA will have considerable success in 2016.

Baroness Masham of Ilton (CB): My Lords, I declare an interest, as I have a farm. Has the closure of the rural payment office in Northallerton put pressure on the system?

Lord Gardiner of Kimble: There certainly has been, and will continue to be, rationalisation. However, I am assured by the RPA that it has the resources for all the work it needs to do to undertake the payment of this and other schemes. There are between 800 and 1,000 people working on the basic payment scheme, and they are working a 7-day-a-week roster to ensure that as many payments are made as soon as possible.

Lord Grantchester (Lab): My Lords, I declare my interest as a farmer who receives payment. Was it wise that the English RPA scrapped its software in the change from SPS to BPS, whereas the Welsh Government merely adjusted theirs and have been able to cope? I understand many offers of advice from consultees in the industry have been made but have not been responded to. If this disaster is not to be dragged into the payment process for 2016—which the Minister rather blandly mentioned—what are the Government’s plans for next year, especially regarding online applications, and when will they communicate them?

Lord Gardiner of Kimble: My Lords, as the noble Lord will understand, there are obviously very many more claimants in England. So far as the IT system is concerned, I understand that the single payment scheme computer would not have been suitable to deal with

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the considerable complexities of the new system, which is why the RPA invested in the new one. There have been improvements following the experiences of this year. I am confident that, in 2016, the computer system and farmers’ ability to apply online will be much enhanced, but we will continue with a paper application as well.

Health: Red Cell Folate


2.59 pm

Asked by Lord Rooker

To ask Her Majesty’s Government, further to the remarks by Lord Prior of Brampton on 21 December 2015 (HL Deb, col 2308), whether the letter from the Scientific Advisory Committee on Nutrition gave any indication of how many women aged 16 to 49 in the United Kingdom met the recommendations from the World Health Organisation regarding red cell folate concentration.

The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con): The advisory committee’s letter indicates that 14.5% of UK women of childbearing age met the new threshold for red cell folate concentration that has been recommended by the World Health Organization since April 2015. Ministers are reviewing the contents of the letter carefully. They plan to come forward with their response to the committee’s latest advice in due course.

Lord Rooker (Lab): I thank the Minister for that Answer but he has just told the House that 85% of women of childbearing age in the United Kingdom failed to meet a major World Health Organization target. The letter says that UK levels are the same as those in the United States of America before fortification with folic acid. Following fortification, US women are now above the World Health Organization target, there have been fewer avoidable abortions, there have been fewer babies with a serious lifelong disability, and the USA is saving half a billion dollars in healthcare costs. The same story is repeated from Canada to South Africa and from Chile to Australia. Worryingly, the same letter says that blood folate levels have gone down so low, it looks like there has been a 25% increase in terminations in England and Wales in the past few years as a result of the current policy of advice only rather than fortification. I say to the Minister: none of the figures in that letter was new. They were known on 20 March last year. The House recesses on 23 March this year. Will we have a decision before we recess?

Lord Prior of Brampton: My Lords, the letter that the noble Lord refers to was received on 20 October last year, so we have had it for a little over three months. It is very important to make the point that it is not that the red cell folate levels of British women have gone down but that the threshold used by the WHO has gone up, from 340 nanomoles per litre to 906 nanomoles per litre. Nevertheless, the noble Lord makes a very strong point. He has made it before, in December. There is a lot of medical and scientific evidence on his side of the argument. There are other arguments that the Government are taking into account.

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Baroness Walmsley (LD): My Lords, is the Minister aware that, as I was told this morning by three neural disease specialists, the danger of overmedication with folic acid by fortification is absolutely minuscule—you cannot measure it? In addition, they suggested to me that it is vital that we reduce the number of babies with neural tube defects because, due to our success in the past in reducing the numbers, the specialists and services for such babies are very thin on the ground. We really need to do something about this now.

Lord Prior of Brampton: My Lords, the danger of overmedication with folic acid is small, I accept that. It is not non-existent but it is small. Just so that the House knows the numbers, the number of babies aborted because of neural tube defects is about 400 a year; the number who are born with neural tube defects, alive or not alive, is about 60 a year. It is a very serious issue and one that the Government are taking extremely seriously, but we have to weigh that against the other issues of medicating the entire population.

Baroness Hayman (CB): My Lords, some of us have long memories that go back to 1991, when the MRC study into this issue had to be stopped early because the results were so overwhelmingly in favour of folic supplementation. The lead researcher on that study was Sir Nicholas Wald. More than 80 countries have taken very seriously those results and have taken on board fortification of white flour. In 2015 Sir Nicholas published a paper about the lost opportunity in the UK. Is it not a matter of profound regret, verging on shame, that in this country, where the initial research was done, we are now being told that there will be a decision “in due course”? If I remember correctly, the last time the Minister spoke about this, he said that it would be very early in the new year.

Lord Prior of Brampton: My Lords, I think we are still quite early in the new year. I do not go back to 1991 but the noble Baroness is right: for many years now there has been a large body of scientific opinion in favour of increasing the uptake of folic acid. There is no dispute about that—I do not think there is much science to dispute. The issue is one of balancing the scientific and medical arguments with issues around choice and whether or not it is right to medicate the entire population for the benefit of a fairly small part of it.

Lord Hughes of Woodside (Lab): My Lords, when the Minister says that other views have been taken into account, will he lay to rest today and for ever the idea that the Government will be swayed by those who say, spuriously and nonsensically, that this is mass medication?

Lord Prior of Brampton: The proposal is that bread should be fortified with folic acid. The point of doing it through bread is that most people eat bread and that it would reach the widest number of people. It would be fortifying a product that most people eat; that is the purpose of it.

Lord Hunt of Kings Heath (Lab): My Lords, is the Minister really saying that adding a very small amount to flour is mass medication; is that not overdoing it? I say to him, as I said on 21 December: can Ministers not come to a decision, yes or no? I get the sense that it

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is no, because he is putting much more stress on the issue of mass medication now than he has ever done on previous questions. I also go back to the answers that his noble friend Earl Howe gave over the last two or three years. Can the Minister not make that decision? The last thing we need would be to refer it yet again to another expert committee for yet more research, when it is quite clear that it would be effective and safe.

Lord Prior of Brampton: My Lords, I can only repeat what I said: we are in the process of making a decision and that decision will be made shortly.

Volkswagen: Emissions


3.06 pm

Asked by Baroness Hayter of Kentish Town

To ask Her Majesty’s Government what assessment they have made of the decision by Volkswagen not to pay compensation to United Kingdom motorists who bought cars that were fitted with emissions-detecting software.

Viscount Younger of Leckie (Con): My Lords, the Government’s view is that Volkswagen could be liable to compensate consumers for any actual losses they suffer. We are aware of Volkswagen’s statement that consumers are unlikely to suffer losses but it is too soon to say whether this is correct. The Competition and Markets Authority has not opened a formal investigation but is continuing to assess whether there is evidence of consumer harm, while liaising with government and other agencies, nationally and internationally.

Baroness Hayter of Kentish Town (Lab): I thank the Minister for that Answer, which at least acknowledges that British Volkswagen drivers have been well let down. They bought what they thought, and for good reasons, was a low-emissions car only to find that Volkswagen had cheated them. Nearly 1 million cars will need to be recalled but their resale value will then go down, yet Volkswagen is refusing to compensate UK owners either for the inconvenience of taking their car back or for the loss of value. Can the Minister tell the House whether he considers that this decision is in line with the new Consumer Rights Act, passed in this House last year? Why will the Government not choose to explain to Volkswagen clearly that misleading purchases should lead to compensation?

Viscount Younger of Leckie: My Lords, the Government take the unacceptable actions of Volkswagen extremely seriously. Our priority is to protect the public as we go through the process of investigating what went wrong and establishing what we can do to stop it happening again in the future. Regarding the noble Baroness’s Question, there is no evidence that consumer rights have been breached but if any have, we have legislation in place at the moment in the Consumer Rights Act and the Sale of Goods Act.

Lord Deben (Con): I first declare an interest as a Volkswagen owner. Does my noble friend accept that the real damage done is to the general public by the additional air pollution, which is already very bad,

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particularly in London? It seems to many of us that the Government should be taking a proactive stance and insisting that Volkswagen makes proper reparation to society as a whole. Would it not be outrageous if the United States took these steps and we in this country, with our high environmental standards, did not?

Viscount Younger of Leckie: Indeed, and it may be some comfort to my noble friend that the Department for Transport and BIS have been pressing Volkswagen very hard over the past few months. We believe that by February there will be a decision on how UK customers who own Volkswagens are affected. On the question of car emissions, the Government are spending more than £600 million between 2015 and 2020 to support the uptake and manufacturing of ultra-low-emission vehicles.

Lord Stoneham of Droxford (LD): The Government have announced that individual Volkswagen car owners will not be liable for any shortfalls in their car road tax. Have they worked out the scale of compensation which they should be seeking from Volkswagen and can they assure the House that they will not accept discounted Volkswagen cars into the government car pool instead of real money?

Viscount Younger of Leckie: I do not know about that, but as I said, that the Government have been pressing Volkswagen very hard and we need to establish what the actual losses are. There is no question but that if UK owners have legitimate claims for compensation for losses, they should be compensated.

Lord Forsyth of Drumlean (Con): Can my noble friend explain why Volkswagen has indicated that it will pay compensation to owners of Volkswagens in the United States but not in Britain?

Viscount Younger of Leckie: I am very aware of that point. We are trying to establish why the US have done this, but it does have a different emissions regime, and there are fewer Volkswagen cars in the US. We are trying to get to the bottom of that.

Lord Anderson of Swansea (Lab): My Lords, individual motorists cannot be expected to pick up the legal costs for any action against a firm the size of Volkswagen. Who will act as plaintiff and who will support the plaintiffs—the motorists—financially?

Viscount Younger of Leckie: The first thing is to establish exactly what the losses are, which could include a range of things. Hopefully, by February—next month—we will know what the situation is in terms of Volkswagen’s statement.

Lord Vinson (Con): My Lords, what Volkswagen did was entirely reprehensible, but there is a technical development here that raises a problem. At the present level of technology, the more you screw down car pollution to lower levels, the more fuel you consume, and there is a very fine balance between the two. I hope any legislation will bear in mind that there is a technical consideration here and that the one balances the other. We could easily find that you produce more pollution rather than less by increasing consumption.

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Viscount Younger of Leckie: My Lords, as your Lordships might expect me to say, this involves a complicated device. One of the reasons for the delay, according to Volkswagen, is that it is trying to get to the bottom of the device that it fitted and is now looking to fix. It wants to make sure that the solution does not impact on vehicle performance, fuel consumption or driveability.

Lord Tebbit (Con): My Lords, is it possible that the Americans have been able to take action because they are not subject to European Community law?

Viscount Younger of Leckie: My Lords, as I say, we are looking to get to the bottom of the decision in the US.

Baroness Oppenheim-Barnes (Con): Would my noble friend not agree that so far, there has been no formal statement from the Government that they are pursuing this matter with a view to protecting consumers who may have been hurt, individually or as purchasers in respect of the value of their cars, and that it is time for such a statement to be made, as has been demonstrated by all the questions asked in your Lordships’ House today?

Viscount Younger of Leckie: I can reassure the House that much work has been going on behind the scenes. For example, two Secretaries of State—for Transport and for BIS—have met Paul Willis, who is charge of the sales operation in the UK, and have written to the Volkswagen board on several occasions. They are behind the consumers who may be affected and are taking this extremely seriously.

Ebola: Sierra Leone


3.14 pm

The Parliamentary Under-Secretary of State, Department for International Development (Baroness Verma) (Con): My Lords, with the leave of the House, I will repeat in the form of a Statement the Answer to an Urgent Question given earlier today in the other place by my right honourable friend the Secretary of State. The Statement is as follows.

“The House will be aware that a new case of Ebola has been confirmed in Sierra Leone. A 22 year-old female student from Tonkolili district sadly died on 12 January. This latest case of Ebola in Sierra Leone demonstrates that we need to stay vigilant. In fact the news came just as the World Health Organization formally declared the Ebola outbreak in west Africa over, following Liberia reaching 42 days without a new case, but it is not unexpected given the context of this unprecedented outbreak.

The new case was identified from a swab taken after death and is currently being investigated. The Government of Sierra Leone have activated their national Ebola response plan, and rapid work is under way to identify and quarantine people who have been in contact with the young woman and to establish her movements in

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the final days and weeks before her death. Teams in five districts are acting on this information. No other cases have been confirmed to date.

The speed of this process reflects the work that the UK has undertaken with the Government of Sierra Leone to develop their national response plan. As today’s IDC report states, the UK has been at the forefront of the global response to the Ebola outbreak in west Africa from the very start, leading in Sierra Leone and working hand in hand with the Government of that country. We took on this deadly disease at source by rapidly deploying the best of British military personnel and NHS staff, building treatment centres in a matter of weeks and mobilising the international response. We have worked with the Government of Sierra Leone to build up their health systems and strengthen all aspects of society, including civil society, to allow them to be prepared.

We continue to stand by Sierra Leone, because we have always been clear that there is potential for further cases. That is precisely why our response is now focused on assisting Sierra Leone in isolating and treating any new cases of Ebola before they spread”.

My Lords, that concludes the Statement.

3.16 pm

Lord Collins of Highbury (Lab): My Lords, I have previously acknowledged the Government’s positive response to Ebola on the ground and the significant role of British volunteers, but today our thoughts must of course be with the people of Sierra Leone. Today in the other place, the Secretary of State stressed getting to the point of resilient zero—steady eradication with monitoring and surveillance, working with communities and education. The most important thing is of course a resilient healthcare system. One important element of that involves health education and training. With no postgraduate training, those who want to specialise are forced to leave the country to pursue further education, and many never return. What steps are the Government taking to support Sierra Leone’s health sector recovery plan, especially programmes backed by the royal colleges in this country, to provide continuing professional development for healthcare workers at all levels?

Baroness Verma: My Lords, the noble Lord raises some very important issues about the recovery plan. The UK has committed to £54 million in support of President Koroma’s nine-month early recovery and transition plan, which will focus on health, education and social protection—and, of course, economic recovery. We will be standing shoulder to shoulder with our friends in Sierra Leone; we think that that is the right thing to do. The noble Lord is absolutely right that we also need to ensure that, as we gear up to help build resilience, we get others on board to give that support.

Baroness Northover (LD): My Lords, I pay tribute to DfID, NHS staff and others, including Save the Children, for their amazing efforts in Sierra Leone since 2014. As unsafe practices were tackled, one upside was the decline in FGM. How is DfID ensuring that that decline is maintained? What is being done to

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counter other diseases which are a global threat? I am thinking here, for example, of Lassa fever, which has broken out across Nigeria.

Baroness Verma: My Lords, as the noble Baroness knows well from the work that she did in her former role as a DfID Minister, part of our wider strategy is to ensure that we build resilience, first and foremost, into the health systems. She touches on a very important issue about FGM: ensuring that those practices do not recur once the recovery is in place. We will work very closely with the president on his plan, but also through the wider work that we are going to do through the community-led organisations on the ground to ensure that the work that we did from the Girl Summit going forward does not get lost in the rebuilding of Sierra Leone. As always, with all these issues, it is really about continuing our dialogue with the Government of Sierra Leone to see how we can help them in strengthening their health systems first of all, but also ensuring that we assist them in tackling issues such as FGM at community level.

Baroness Jenkin of Kennington (Con): My Lords, as I think everyone now recognises, mobilisation of communities, as the Minister recognised in her Statement, was and is the most effective and powerful tool to bring Ebola down to zero and eradicate it. Will she confirm that the Government will continue their commendable level of investment in the excellent work of British civil society organisations, which are working with locals on the ground at the heart of communities? I declare my interest as a patron of Restless Development, which does a lot of work in this area.

Baroness Verma: My noble friend is absolutely right. Having community organisations on the ground was key in enabling us to try to restrain as much of the disease as we possibly could. I can reassure my noble friend that that commitment remains and we will continue to work on the ground with community groups, on a programme of intensive community engagement that began in October 2014. As my noble friend knows, we were among the first to be on the ground to respond to the crisis.

Lord Trefgarne (Con): My Lords, is my noble friend aware of the British Army nurse who travelled to west Africa to treat Ebola patients, contracted the disease herself, was brought back to the United Kingdom and restored to health and has now insisted on returning once more? Does not that demonstrate devotion to duty of a quite extraordinary kind?

Baroness Verma: My noble friend is absolutely right. We must of course pay tribute to all those people who put themselves at risk on the front line, including our military personnel and staff of the NHS, among many who have gone there and worked on the ground, putting their own lives at risk. We must also pay tribute to the people of Sierra Leone themselves, who were very much instrumental in being able to restrain this outbreak.

Baroness Masham of Ilton (CB): My Lords, how was it that a swab was taken only after the poor woman died? Surely, diagnosis should have been done when she became ill. Was she not looked after?

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Baroness Verma: In this case—investigations are ongoing, so we have not yet come to some concluding outcomes—the woman did not demonstrate the usual symptoms of Ebola. The practice of taking swabs is something that we in the UK have encouraged, which is why we were able to pick up that this lady died from Ebola.

Lord Boateng (Lab): My Lords, since the outbreak of Ebola there has been investment flight from Sierra Leone. Sustainable healthcare systems demand locally generated revenue, and DfID is playing an important role in this respect, too. But what more can be done to persuade our partners in the European Union and, indeed, the United States, to add their voice and, importantly, resources, to the important task of regenerating the economy of Sierra Leone, without which there can never be sustainable healthcare?

Baroness Verma: The noble Lord raises the point about funding for the recovery of Sierra Leone, and Liberia as well. We want to ensure that, as a country, we play our part by pledging and by encouraging our partners. So we will continue to play our part and encourage our partners. We have very much supported the UN Secretary General’s high-level panel also to encourage that we do much more collectively and globally. Just to give the noble Lord some assurance, the World Bank has committed $650 million to make sure that, over the next 18 months or so, the reconstruction of those three countries affected by Ebola takes place.

Baroness Hayman (CB): My Lords, following the question from the noble Lord, Lord Boateng, is it not important to recognise that we must not be diverted from the task of rebuilding and regenerating the economy and the health service in Sierra Leone? Does the Minister agree that all the leading authorities warned that individual sporadic cases would be reported and that, while it is tremendously important to deal effectively with them, we should not allow that to colour the judgment that the situation in west Africa is as it was, sadly, a year ago?

Baroness Verma: My Lords, there are two main issues. One is being able to deal with the recovery and making sure that there is sufficient funding and support for us to be able to help strengthen the health systems in countries whose growth was very good before the outbreak but whose systems were not as strong as they should have been—those systems need strengthening. We will probably see the occasional case, but we must continue to encourage others to make sure that we rebuild west Africa in such a way that economic growth continues on a much more sustainable pathway. That can be done only if all global partners come together to be very supportive of what the UK has often done. The UK has led by example. Part of that is our commitment to 0.7% to ensure that our aid budget will always be protected.

The Earl of Sandwich (CB): The Minister spoke about the value of community groups. Is she satisfied that there is proper co-ordination between civil society organisations and government health services? In view

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of the recent incident, is there perhaps a disconnect between the WHO’s analysis and that of the Government of Sierra Leone?

Baroness Verma: My Lords, there is not a disconnect. We have managed to deal with an unprecedented outbreak, but we need to make sure that co-ordination is much better. The UK was able to co-ordinate 10 government departments to work closely alongside other organisations in Sierra Leone. I do not think there is a disconnect, but there is always room to improve and to learn lessons when things have not gone so well. On the whole, we demonstrated that once you strengthen co-ordination on the ground and assist the Government of the day to support their systems, things get better.

Arbitration and Mediation Services (Equality) Bill [HL]

Third Reading

3.27 pm

Bill passed and sent to the Commons.

Regulation of Political Opinion Polling Bill [HL]

Third Reading

3.29 pm

A privilege amendment was made.

Bill passed and sent to the Commons.

Bank of England and Financial Services Bill [HL]

Third Reading

3.29 pm

Clause 21: Rules about controlled functions: power to make transitional provision

Amendment 1

Moved by Lord Bridges of Headley

1: Page 17, leave out line 21

The Parliamentary Secretary, Cabinet Office (Lord Bridges of Headley) (Con): My Lords, this is an amendment to Clause 30, which in effect will require certain individuals with annuities valued above a threshold to take advice before selling an annuity on the secondary market. Clause 30(3) gives the Treasury the power to make regulations to exempt some individuals from mandatory advice. The amendment changes the nature of that power so that the regulations are made under the affirmative, rather than the negative, parliamentary procedure.

19 Jan 2016 : Column 649

On Report, the Delegated Powers and Regulatory Reform Committee recommended that the power to exempt some individuals from mandatory advice should be subject to the affirmative procedure. The Government agree that this is an important part of the consumer support package and that your Lordships should have the opportunity to debate this issue before it is set in legislation. That is why an amendment is being brought forward to change the power so that it is subject to the affirmative resolution procedure.

Along with the power to specify certain individuals who will be exempt from the advice requirement, Clause 30 gives the Treasury the power to specify which annuities will be subject to the advice requirement, including the specification of any threshold annuity value, and a further power to specify what type of advice individuals must have received. Ahead of laying the appropriate secondary legislation, the Government will be consulting later in the year on our proposals for the details of the advice requirement allowed for in these delegated powers. I beg to move.

Lord Wallace of Tankerness (LD): My Lords, I had not at all intended to intervene until the Minister mentioned the affirmative resolution procedure, which of course means that the order will come to your Lordships’ House for approval. Does the Minister really mean that—and, if he seeks the approval of the House, is he willing to accept that the House might not approve it?

Lord Bridges of Headley: My Lords, I am sure that the Government will see sense and will wish to acknowledge the views of the House.

Amendment 1 agreed.

Clause 30: Advice about transferring or otherwise dealing with annuity payments

Amendment 2

Moved by Lord Bridges of Headley

2: Page 25, line 26, at end insert—

“( ) In section 429(2B) (regulations subject to affirmative procedure)—

(a) after paragraph (a) (inserted by section 21) insert—

“(b) provision made under section 137FBA(3);”;

(b) the words from “provision made under section 410A,” to the end become paragraph (c).”

Amendment 2 agreed.

Clause 32: Duty of Bank to provide information to Treasury

Amendment 3

Moved by Lord Bridges of Headley

3: Page 28, line 23, after “institutions” insert “or entities”

19 Jan 2016 : Column 650

Lord Bridges of Headley: My Lords, the amendments in this group make minor and technical changes to correct oversights in the Bill. Amendments 3 to 6 deal with the use of the terms “institution” and “group entity” in the new Section 57B inserted by Clause 32. This section requires the Bank to provide information related to resolution plans for institutions and group entities. Subsection (5), which allows the Treasury to direct the Bank not to provide this information in relation to specified institutions, omits group entities. These changes correct this and make consequential amendments to the rest of the clause.

Amendment 7 alters Schedule 2 to ensure that the definition of “banking group company”, found in Section 189(1B) of the Financial Services and Markets Act 2000, applies to the use of that term in the new subsection (1ZB) of that section, which is inserted by this part of the Bill, and not just to its use in subsection (1A), as is the case now.

On Amendment 8, as we are ending the PRA’s status as a subsidiary of the Bank, Schedule 2 of the Bill removes a series of requirements in existing legislation for consultation between the Bank and the PRA that are no longer necessary. One such requirement, in Section 129A of the Banking Act 2009, was overlooked, and this amendment removes it.

Amendment 8 also reinstates a requirement for the Bank and the FCA to inform each other that they are satisfied that the conditions for application for a bank insolvency order for which they are respectively responsible are satisfied before either can make such an application. The amendment made by paragraph 56 of Schedule 2 to the Bill to Section 96 of the Banking Act 2009 inadvertently removed this requirement.

Finally, Amendment 9 corrects the reference to the Financial Services (Banking Reform) Act 2013 in paragraph 69 of Schedule 2. I beg to move.

Lord Davies of Oldham (Lab): My Lords, I am grateful to the Minister for explaining these amendments, which he has assured the Opposition are purely technical. I would not doubt the word of a Minister in such circumstances at any time, but certainly not at a time when, as will be recognised, the Bill is being considered first in this House. Therefore, if there were any failure to meet the criterion of technical amendments, I have no doubt that my colleagues in the other place would light upon it with some alacrity, so I am happy to support these amendments.

Amendment 3 agreed.

Amendments 4 to 6

Moved by Lord Bridges of Headley

4: Page 28, line 24, leave out “(“specified institutions”)”

5: Page 28, line 28, leave out “specified institutions” and insert “institutions or entities to which the direction related”

6: Page 28, line 31, leave out “the specified institutions” and insert “those institutions or entities”

Amendments 4 to 6 agreed.

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Schedule 2: Amendments relating to Part 1

Amendments 7 to 9

Moved by Lord Bridges of Headley

7: Page 48, line 8, leave out “, omit the definition of “bank”.” and insert—

“(a) for “subsection (1A)” substitute “subsections (1A) and (1ZB)”;

(b) omit the definition of “bank”;

(c) in the definition of “banking group company” for “that Act” substitute “the Banking Act 2009”.”

8: Page 50, line 33, at end insert—

“( ) In the entry for section 96, in column 2, for paragraphs (a) and (b) substitute—

“(a) Read subsection (2)(a) as “the FCA has informed the Bank of England that the FCA is satisfied that Condition 1 in section 7 is met,”.

(b) Treat the references to the PRA in subsection (3) as references to the FCA.

(ba) Read subsection (3)(a) as “the Bank of England—(i) has informed the FCA that it is satisfied that Condition 2 in section 7 is met, and (ii) has consented to the application,”.””

9: Page 52, line 9, column 1, leave out “and Banking Reform Act” and insert “(Banking Reform) Act 2013”

Amendments 7 to 9 agreed.

A privilege amendment was made.

3.35 pm


Moved by Lord Bridges of Headley

That the Bill do now pass.

Lord Bridges of Headley: My Lords, I believe it is customary at this stage to thank all those who have helped ease the passage of this Bill through the House. It is fair to say that at times, the passage has not been entirely easy. The list of those I have to thank is therefore long but noble Lords will be glad to hear that I will refrain from an Oscaresque thank you, complete with thanking my mother and bursting into tears, and will simply thank a few people. I thank the Bill team of course, for their excellent guidance and advice, and my excellent Whip and noble friend Lord Ashton, who helped keep me on the straight and narrow throughout. I thank the Governor of the Bank of England as well as Andrew Bailey and the officials there, and Sir Amyas Morse and officials at the NAO for all the work they did on various parts of the Bill and the negotiations over that.

Those Peers on all sides of the House who were members of the PCBS also deserve my thanks, especially the noble Lord, Lord McFall, and the most reverend Primate the Archbishop of Canterbury, and those on the Cross Benches who made excellent contributions on a range of possible technical issues during the Bill and spared the time to explain to me their thoughts and concerns, especially on the NAO and Bank issue. In particular I thank the noble Lord, Lord Bichard, as well as the noble Lords, Lord Burns, Lord O’Donnell and Lord Turnbull. At one stage in proceedings, one of

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your Lordships asked for a collective noun to describe three former Permanent Secretaries. The answer is, of course, “a Humphrey”.

I thank my noble friend Lord Naseby for his contribution regarding mutuals, and the noble Baroness, Lady Worthington, for her thoughts on the Green Investment Bank and auditing issues.

Finally, of course, I thank especially both of the Front Benches—the noble Lords, Lord Tunnicliffe, Lord Davies and Lord Sharkey, and the noble Baroness, Lady Kramer—for all the time they spent meeting me and discussing detailed aspects of the Bill. Sometimes we agreed and sometimes we did not. But the discussion was always amiable, civilised and, above all, thanks to their efforts, we did what this House is meant to do, which is to scrutinise and test the legislation.

I said at the start of the Bill that I see this process as a form of legislative acupuncture. At times it was undoubtedly a bit painful, but, thanks to the contributions of your Lordships, the Bill leaves this place in better shape than when it began, and for that I am thankful.

Baroness Kramer (LD): I very much join in the thanks, particularly to the noble Lord, Lord Bridges, for the way in which he conducted the work of the ministerial Front Bench. He was always open to meeting and kept us incredibly well informed—frankly, above and beyond the usual. I extend those thanks to the noble Lord, Lord Ashton of Hyde, and to the whole of his Bill team for the generous way in which they handled this piece of legislation. The Government listened, particularly on one key issue which these Benches were concerned about—oversight of the Bank of England —and the Bill will now be stronger for that.

I have to say, very briefly, that there were areas where the Government did not listen, and we will all live to regret two of them. One is the decision to end the reversal of the burden of proof, which would have had a big impact on the culture of banking, and for the better, and the other is the concern we raised over the independence of the FCA. Both those concerns have been very much underscored by the recent disclosure that the FCA has cancelled its review of the culture of banks and by the timing of the way it did so, just a few weeks after the Bank of England parachuted an executive director into the FCA to supervise this area. So we have concerns, which I am sure will be picked up in another place and by the Treasury Select Committee. But I very much thank those who worked on the Bill and who did so with great graciousness.

Lord Davies of Oldham: My Lords, I, too, thank the Minister and his colleague, the noble Lord, Lord Ashton, for the way in which they have conducted the progress of this Bill. We particularly appreciate that the Minister was concerned to arrange meetings at which we could discuss fully, outside the processes of the Chamber, crucial aspects of our anxieties. We were greatly exercised over the issues of the court and its powers and the oversight committee, so we also particularly appreciated the fact that a meeting was arranged for us by the Minister with the chairman or chief officer of the court. That was extremely helpful and it aided us in our consideration of the Bill. So I thank him and his team for their work on the Bill.

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I also indicate to the Minister that, as a Lords starter, the Bill has further scrutiny to undertake. He will be well aware that my colleagues in the other place will subject the Bill to intensive scrutiny and will seek to find areas where perhaps the Government can be persuaded to think again, not least on the reverse burden of proof and their position with regard to the court. But this has been a constructive exercise. I suppose that it is the Minister’s maiden Bill and I congratulate him on his achievement as the Bill is about to pass.

Bill passed and sent to the Commons.

Scotland Bill

Bill Main Page

Committee (2nd Day)

3.41 pm

Relevant documents: 6th Report from the Constitution Committee, 15th Report from the Delegated Powers Committee

Clause 34: Crown Estate

Amendment 43

Moved by Lord Davidson of Glen Clova

43: Clause 34, page 33, line 18, leave out “may” and insert “must”

Lord Davidson of Glen Clova (Lab): My Lords, I shall speak also to Amendment 46 standing in my name and that of my noble friend Lord McAvoy. These amendments would alter Clause 34, which relates to the devolution of the Crown Estate. Although technical in nature, the amendments are nevertheless important. Not only do they reflect amendments tabled in the other place by my honourable friend the Member for Edinburgh South and the right honourable Member for Orkney and Shetland but they reflect our approach to the Bill more broadly. We fully support the devolution of the Crown Estate but there are a number of outstanding issues on which it would be helpful if the Minister would comment in due course.

By way of background, the Scotland Bill will devolve the Crown Estate Scottish assets and income. The assets include nearly the entire Scottish seabed, 37,000 hectares of rural land, 850 aquaculture sites, the rights to salmon fishing licences, the rights to renewable energy, pipelines and cables on the continental shelf, and residential and commercial properties. In total, they account for 3.9% of the entire Crown Estate revenues and are worth nearly £261.5 million.

Crucially, Clause 34 does not devolve joint investment projects and, before I turn to the specifics of the amendments, I will comment briefly on this. Because only wholly or directly owned assets are devolved, the management of Fort Kinnaird retail park in Edinburgh, of which the Scottish Crown Estate has a 50% interest, will remain the responsibility of the UK Crown Estate commissioners and the revenue that it raises will contribute to the UK Consolidated Fund. When one considers the shareholding that the Crown Estate has in this property, we contend that it should be an asset, in part, of the Crown Estate in Scotland. I would be

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grateful if the Minister would say whether any assessment has been made of how devolution of the Scottish Crown Estate might affect, indirectly or otherwise, the management or income of Fort Kinnaird.

On the specifics of the amendments, Amendment 43 would replace the word “may” with “must”, thereby reducing the Treasury’s discretion in making a transfer scheme. This would clarify the obvious intent on all sides of the House to devolve the Scottish Crown Estate assets. We understand the reason for the current drafting is that the Treasury requires legislative consent from the Scottish Government in order to transfer assets.

Amendment 44, proposed by the noble and learned Lord, Lord Wallace, also focuses on this, possibly with some rather more interesting additions. The problem with the current wording may be that, as drafted, even were legislative consent given, which I presume it would be, the Bill does not definitely require the formation of such a scheme. I do not believe that this is the intent. Therefore, this amendment would provide a measure of clarity to these proceedings.

3.45 pm

Further, the transfer of assets and income to the Scottish Parliament was a Smith commission recommendation. The Smith report explicitly uses the term “Parliament”. However, this is not reflected in the Bill. Accordingly, Amendment 46 would replace the words “Scottish Ministers” with “Scottish Parliament”. During the first day of Committee, we had a great deal of debate about the permanency of the Scottish Parliament. Indeed, on this side, we have continually made the case for this, and it is now beyond any doubt. Although Ministers and Governments come and go, the institution will remain. We believe that the reference to the Scottish Parliament should be consistent throughout all aspects of the legislation, and that is the reason for our amendment.

Clause 34(7)(d) refers to the Scottish Parliament assuming the same role as the UK Parliament under the Crown Estate Act 1961; that being oversight and accountability regarding Crown Estate assets. Would the Minister explain why the Scottish Parliament should not be the transferee of the estate’s assets and responsibilities? Were the assets transferred to the Scottish Parliament, that Parliament would then be able to nominate Scottish Ministers for whatever reason might be required. We are concerned that the Government have missed out the middle step; namely, the involvement of the Scottish Parliament. There may be further technical reasons why this is not possible, so I would be grateful if the Minister would respond to these points.

As I observed in my opening remarks, these are minor changes to a clause that we largely support. However, we think they could aid a smoother and more effective transition. It is crucial that as little disruption as possible is caused. So my final question to the Minister on this issue is: what measures are in place to ensure minimal disruption to the staff and tenants whose livelihoods may depend on the successful management of the Scottish Crown Estate and who would expect nothing less? Accordingly, I look forward to the Minister’s responses and, with that, I beg to move.

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Lord Wallace of Tankerness (LD): My Lords, a number of amendments in this group stand in my name and that of my noble friend Lord Stephen. The first reflects largely what the noble and learned Lord, Lord Davidson of Glen Clova, has just said in respect of the obligation on the Treasury to be just that—an obligation, and not something that it “may” do, rather than “must”, and therefore slide out of. The House frequently debates the difference between “may” and “must”, but in this situation it is important. It was very clear from the Smith commission that there was an expectation that this devolution would take place. This amendment seeks, in consultation and agreement with Scottish Ministers, to ensure that there should be devolution and that it should not be voluntary or discretionary rather than mandatory.

I readily understand why the Government have set this out in a way that means devolution to Scottish Ministers rather than to the Scottish Parliament. The Scottish Parliament cannot exercise administrative or executive functions and, therefore, it would be necessary to transfer to a body that does have executive functions—namely Scottish Ministers. But I note, too, that the legislative devolution is specifically to amend the Crown Estate Act 1961, which will come within the legislative competence of the Scottish Parliament. It may be wise for Scottish Ministers and the Scottish Parliament subsequently to decide that there should be an independent Crown Estate body, as exists at present, at arm’s length from government, rather than leaving the direct administration of such substantial assets, as the noble and learned Lord, Lord Davidson, has indicated, in the hands of those who—I say this in no pejorative way—have a political agenda.

Amendments 49, 50 and 51 are somewhat technical but nevertheless important. They change the procedure set down in the Bill for taking forward these changes. The type C procedure, which is currently in the Bill for the approval of statutory instruments under the Scotland Act, requires the approval of both Houses of Parliament. Although the scheme will require the agreement of Scottish Ministers, under new Section 90B(17), the Scottish Parliament is not required to approve the scheme. However, the type A procedure requires statutory instruments containing the scheme to obtain the approval of both Houses of Parliament and the Scottish Parliament, and I believe that this is more reflective of the Smith commission report. Indeed, at the prompting of the Law Society of Scotland, we believe that the amendment would improve the Bill.

Similarly, Amendment 51 would change the procedure for approval of a variation of the scheme from type I to type A. Clause 34(6) provides that for certain purposes, type I procedures should be used for amendments to the scheme if that procedure designates that a statutory instrument containing legislation is subject to annulment by either House of Parliament. Therefore, changes to the scheme would not be subject to scrutiny by the Scottish Parliament. By changing to type A, the amendment would ensure that the Scottish Parliament would have a role in passing that legislation. Again, that would improve the Bill.

Amendment 48A is somewhat more substantive. It provides for onward devolution to the three islands authority areas, namely Orkney, Shetland and the

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Western Isles. The amendment, which is in my name and that of my noble friend Lord Stephen, was largely drafted by the islands’ councils. The Smith commission stated that following the transfer of the Crown Estate to Scottish Ministers,

“responsibility for the management of those assets will be further devolved to local authority areas such as Orkney, Shetland, Na h-Eilean Siar or other areas who seek such responsibilities”.

In the foreword to the commission report, the noble Lord, Lord Smith of Kelvin, said:

“There is a strong desire to see the principle of devolution extended further, with the transfer of powers from Holyrood to local communities … The Scottish Government should work with the Parliament, civic Scotland and local authorities to set out ways in which local areas can benefit from the powers of the Scottish Parliament”.

The purpose of the amendment is to do just that: not only generally to meet the aspiration of the noble Lord, Lord Smith, in his foreword, but specifically to give real substance to the recommendation that there should be onward devolution of the management of the Crown Estate to the islands’ council areas. Indeed, the noble Lord also said that other areas may seek such responsibilities, but in his report he specified these three areas.

I anticipate the Minister saying in his answer, “That is not part of Smith. Smith said that it should be done by the Scottish Ministers”. Of course, technically, our amendment provides for that but it gives real assurance that it will happen. That is necessary because there is, by and large, some suspicion—let me put it no higher than that at the moment, although many might put it higher—that the present Scottish Government are very much a centralising Government. If they win the elections in May, I do not think we see any signs that they would do otherwise. During the last general election, my party produced a pamphlet entitled The SNP Have Centralised the Life Out of Scotland. It goes through a number of services—police, fire, health, local government, courts, colleges and enterprise companies—where responsibilities and powers have been centralised in Edinburgh. The SNP has done the opposite of what many of us wished to see—powers going from Edinburgh to communities in Scotland. With this amendment, we seek to make sure that this becomes a reality and that this devolution is honoured.

I should not put this only in terms of meeting and addressing concerns because there is a positive case as well. The conveners of the three islands authority areas have written to many noble Lords setting out their case. They refer to their policy as set out in the document, Our Islands, Our Future, which was launched in June 2013 with the objective of highlighting the distinctive features, including the opportunities and challenges, for the islands communities, and the fact that these may be better achieved through the further devolution of power. Following the launch of that document and initiative, some important steps have already been taken. When my right honourable friend Alistair Carmichael was the Secretary of State for Scotland, he entered into an agreement with the islands councils that there would now be more “island-proofing” of legislation and a better interchange and exchange between officials in the council areas and in the UK Government. Indeed, policy commitments have also been made by the Scottish Government.

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The further devolution of the management functions of the Crown Estate, especially in coastal waters, will be an opportunity to promote subsidiarity and to enhance the well-being of our islands communities. I have something of a track record on this from the time when I was the Member of Parliament for Orkney and Shetland and the Member of the Scottish Parliament for Orkney. My dealings with the Crown Estate were not always smooth, especially when it tried to impose levies on local slipways because part of the slipway went over the foreshore. There was also rows, debates and disputes as to whether Udal law applied or not. In some cases we succeeded in showing that Udal law applied and therefore the estate had no rights at all. The estate also tried to charge fees for berthing in marinas, along with the virtual production tax that it put on fish farms. It is fair to say that my experience over recent years is that there have been some improvements, but there is nevertheless a general belief that the communities of the islands would be far better at managing these local marine resources themselves. This is an opportunity genuinely to give substance to localism and promote the sustainable use of the marine resource, not least with regard to aquaculture and renewable energy.

The question might be asked: are the islands councils capable of exercising these functions? One needs only to look at what both Orkney Islands Council and Shetland Islands Council have done over the past 40 years in implementing the Orkney County Council Act 1974 and the Zetland County Council Act 1974. That was private legislation designed primarily to address issues arising from the development of the oil industry and the infrastructure in the islands areas to support it, but in practice it is very relevant to tackling the development of aquaculture in those communities. The works licences that were granted by the local authorities were in many respects far more considered and robust in dealing with the issues than was the work done by the Crown Estate, from which rental agreements had to be sought, and which played what might be described as the planning permission role in areas that were not covered by the two local Acts. It is worth noting that the Crown Estate very much relied on the work of the islands councils in granting works licences when it came to issuing its own rental agreements. Indeed, the planning arrangements that were set up to deal with the works were subsequently applied to the rest of Scotland. Orkney and Shetland provided the model for the rest of the country in planning arrangements for the inshore marine environment.

I do not doubt that there is both the capacity and the capability within the council areas to exercise these powers in a responsible and imaginative way that will bring benefit to the communities. I hope, therefore, that the Government will be sensitive and responsive to this amendment and that the Minister will be willing at the very least to meet representatives of the islands authorities before the Report stage. This is an opportunity not only to ensure that what the Smith commission proposed actually happens, but also, as an initiative, to try to give real substance to the idea of localism, thus bringing real benefits to our islands communities.

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4 pm

Lord McCluskey (CB): My Lords, I have added my name to several of these amendments and I need add nothing to what has been said by the two noble and learned Lords in support of them. However, perhaps I may draw attention to one thing. As has already been made clear in relation to two of these amendments, the Bill appears to depart expressly from the clear recommendation or agreement that appears in the Smith report, paragraph 32 of which states:

“Responsibility for the management of the Crown Estate’s economic assets in Scotland, and the revenue generated from these assets, will be transferred to the Scottish Parliament”.

Similarly, as the noble and learned Lord, Lord Wallace, just said, there is a provision which appears to be departed from. Amendment 48A relates to further devolution to local communities. The provisions in the Bill show that a recommendation or an agreed decision in the Smith report is not written in stone. Hitherto, the Government have made a great point of saying that the Smith commission must be enacted in full. Here we have two instances, at least, where the Government have departed from, and indeed contradicted, what the Smith report advised. Are we to take it that, if the Government come to the view that Smith did not get it quite right in some way for some clear, sound reason, the Smith recommendation need not be followed? Will that apply to other provisions in the heads of agreement relating to other matters in respect of which the Government have hitherto followed the Smith line?

Lord Gordon of Strathblane (Lab): My Lords, I shall intervene briefly on two points. First, as regards the discussion about “may” and “must”, while I concede that “may” sounds too permissive and does not adequately reflect Smith, it could be argued that “must” sounds as if one needs to coerce an unwilling UK Government. Surely, the word “shall” would be the obvious alternative.

Secondly, as regards the point made by the noble and learned Lord, Lord Wallace, while I agree entirely that the island authorities are wholly competent to manage the Crown Estates, and I hope they will be allowed to do so, the agency for handing over the power must be the Scottish Parliament. For this Parliament to insist in advance that it goes is not devolution, it is compulsion.

The Earl of Kinnoull (CB): My Lords, I shall speak to Amendments 45 and 47. First, I thank the Minister and his officials for the generous amounts of time they have given to date to discussing these matters. These amendments arise from my concern that the Bill is not consistent with the Smith commission agreement and would make Crown Estate assets politically available ones, rather than things held independently for the people of the nation. The wording of the amendments is illustrative only.

As has been observed, the Crown Estate’s core constitutional document is the Crown Estate Act 1961. That document, however, is a cold discussion of constitution and functions and does not address how the Crown Estate works in practice, especially how it works together with Ministers. That is in the HM Treasury and Crown Estate framework document, which is publicly available on the website. That document,

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which is a model of clarity, makes it abundantly plain that the Crown Estate assets are to be managed on an arm’s length basis. Paragraph 3 states that,

“it is not an instrument of government policy, it is a public body”.

The values of the Crown Estate are clearly set out and include stewardship. The document states:

“Stewardship is deeply engrained in our culture; because of our history and because of our heritage, we act at all times as good stewards of the properties we manage. We strive for the best standards of management: in our parkland and gardens; in our farmland and our forestry; in the marine environment; and in our buildings and streetscapes. So our commercial approach is supported by a clear recognition of our stewardship responsibilities”.

Nothing in the Smith commission agreement suggests in any way that any party to that agreement sought to change the arm’s-length basis that the Crown Estate operates under, or the values by which the assets are managed, including that of stewardship.

I turn to the phrases in the Smith commission agreement, especially paragraph 32, which the noble and learned Lord, Lord McCluskey, just read from. In this, I detect not one iota of any agreement that seeks to change what I just said about the arm’s-length nature of the relationship between the Government and the Scottish Crown Estate. I ask the Minister my first question: does he agree with my assertion?

Secondly, the commission agreement is in respect only of the economic assets of the Crown Estate, which presumably is not all the assets. Will the Minister explain why the Bill currently refers to all the assets, as the noble and learned Lord, Lord McCluskey, said? If this is a change to the Smith commission agreement based on sound reasoning, then would the Minister agree that this type of logic might apply in other situations?

Thirdly, the agreement sees the transfer of management to the Scottish Parliament, as has just been discussed, but if the Minister argues that such transfer is not possible, as I suspect he will, then would he agree that it would be much more in keeping with the Smith commission agreement to maintain the arm’s-length relationship between the Government and the Scottish Crown Estate, using language similar to what I have proposed?

My amendments do not address onward devolution. I am very much in favour of this and I found the speech of the noble and learned Lord, Lord Wallace of Tankerness, compelling. My rather less compelling thought had been that the new Scottish Crown Estate commissioners should make suitable provision for this, in line with the Smith commission agreement and, indeed, with Richard Lochhead’s own words in his document, Administration of the Crown Estate in Scotland—Case for Change, at paragraph 21:

“In particular, there is widespread support in Scotland for an approach to land management which seeks to support communities—particularly in rural and isolated areas—taking responsibility for their own futures”.

I can only think that he and the SNP would therefore not object to onward devolution being in the Bill.

I do not believe that my amendments are in any way inconsistent with the Smith commission agreement; the Bill’s clauses as currently cast are. I would transfer the management of the Scottish Crown Estate assets to a similarly run independent body, so that these

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important things cannot be used for political purposes, and so that their stewardship continues to be managed on a long-term basis for the people of Scotland.

Lord Sanderson of Bowden (Con): My Lords, I support the thrust of the amendments from the noble Earl, Lord Kinnoull. The Crown Estate is an independent, commercial business. It is extremely well run and, of course, it pays its profits to the Treasury. It is a great shame that we do not have anyone from the Scottish National Party in the Chamber so that we can hear what they have to say about this future arrangement. It would be much better if they were here, but we have to imagine how they will view this whole operation. In supporting the noble Earl, Lord Kinnoull, I hope that they realise that it is not really an arm of government that we want to see in Scotland, but a separate board reporting to the Government and to the Scottish Parliament as to how they are getting on. In supporting the noble and learned Lord, Lord Wallace, I hope that that particular board would have a highland spring in its step.

I turn to the amendment from the noble and learned Lord, Lord Wallace. Having been a Minister for the Highlands, I know only too well that the relationship between the Crown Estate and the Highland councils was not always a smooth-running affair. Of that I am quite certain. However, I strongly support what the noble and learned Lord said about the future arrangements now that we are to have a transfer of functions in relation to the Scottish Crown Estate. I hope that this will be borne in mind by the Scottish Government when they determine how they will run this whole affair. As the noble Lord, Lord Gordon, said, no doubt there has to be a central board, but the people in the islands should also be included in the arrangements going forward. Dare I say that the Glenlivet estate, in the Moray district—which was in the hands of the Forestry Commission but is now very much better run, if I may say so, by the Crown Estate—should also be included in the arrangements going forward?

I have one other thing to say, which has a bearing on what has already been said by the noble and learned Lord, Lord Davidson. Fort Kinnaird, on the edge of Edinburgh, is, in fact, a shopping centre. I will be interested to hear what the Minister has to say about this because Fort Kinnaird is in a different position from that of all the other interests that the Crown Estate has in Scotland, because it is part of a joint fund with other sovereign funds which own that property and properties south of the border as well. The arrangements that the Crown Estate arrives at with its partners in many places, particularly in Regent Street—it owns just about the whole of Regent Street—are built on trust between the various parties to those funds. I hope that the whole question of Fort Kinnaird and its works is left well out of the arrangements for the transfer to Scotland of the Crown Estate, so that it can continue with its present arrangements under the fund, because that is going well and I see no reason at all why that part of the operation should be devolved.

The Earl of Dundee (Con): My Lords, I should also like to support these amendments, including those in the name of the noble and learned Lord, Lord Wallace

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of Tankerness, and the noble Earl, Lord Kinnoull. In combination they seek to advance two main purposes: first, to enable the Crown Estate’s successor body to remain as independent of government and the control of Ministers as the current Crown Estate body already is; secondly, for the new Scottish Crown Estate body to include commissioners properly representing Scottish regions and localities. As has already been explained, such proposals correspond closely to the advice of the noble Lord, Lord Smith of Kelvin, and reflect his strong advocacy of avoiding centralisation as much as possible.

Baroness Liddell of Coatdyke (Lab): My Lords, perhaps I might raise a specific point which I had intended to raise under the group of amendments beginning with Amendment 65 on renewable energy. In an odd way, it comes back to the joint investment projects which my noble and learned friend Lord Davidson and the noble Lord, Lord Sanderson, raised. My point relates to offshore renewable energy. I draw attention to my entry in the register of Members’ interests as a non-executive director of the Offshore Renewable Energy Catapult.

The Offshore Renewable Energy Catapult is a government-funded technology facilitator funded by Innovate UK, which, of course, is part of the Department for Business, Innovation and Skills. It is based in Glasgow and has developments in other parts of the UK. In particular, it has just taken over a development at Methil in Fife. The kind of joint investment projects I am seeking protection for, and clarification of their future status, are ones that probably have not yet taken place. If we are going to get investment in cutting-edge technology such as offshore wind, wave or tidal, some government money will have to be put into it. Will the Minister be so kind as to look at what protections there would be for investments made by UK government-funded agencies, perhaps in partnership with the private sector—in the way that the noble Lord, Lord Sanderson, outlined with Fort Kinnaird—to ensure that there is no diminution in the value of those investments as we move forward?

This is quite a technical point and it may be that the Minister would prefer to write to me. But it is the kind of thing which, in terms of precedent, requires a degree of clarification at this point. It may be an arcane point, but now is the time to get such points sorted out.

4.15 pm

Lord Lang of Monkton (Con): My Lords, a number of points have been raised on this group of amendments. Amendment 43 refers to “may” and “must”. When I was a young, dynamic junior Minister in the Scottish Office, I once tried to change “may” to “must” in a Bill that we were bringing before Parliament. I was told by my officials that: “In effect, Minister, ‘may’ means ‘must’”. This was, of course, in the premiership of my late lamented friend Baroness Thatcher. I rather like the triangulation, offered by the noble Lord, Lord Gordon of Strathblane, that “shall” is probably better than either of them. No doubt the Minister will have an answer to that point.

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I support the noble Earl, Lord Kinnoull, on Amendments 45 and 47 and echo what has been said by my noble friends Lord Dundee and Lord Sanderson. This is an important issue because centralisation—to which the noble and learned Lord, Lord Wallace, drew attention—is a very alarming trend that is taking place in Scotland. We see it threatening the universities. I had a hand in the universities when I was Secretary of State: I created their separate funding council in Scotland and took part in expanding university activities. To see anyone intervening in the independence of the universities worries me greatly.

One can see it in the police, too. Again, I made changes to the police force when I was Secretary of State but I resisted any suggestion of centralising, which I thought was a seriously wrong step. I would have liked to have privatised Scottish Water, but I was able to set up three separate corporations. Once they had created a record of performance, they would have been able to follow the English ones—already in the form of corporations—into private ownership. Sadly, I was no longer in power, and nor was my successor, my noble friend Lord Forsyth, when that point was reached.

There has been a trend, not just confined to the present Government but over time, for the devolved Parliament not to devolve further: not to decentralise but to centralise. That is why I feel strongly that we do need, as the noble Earl suggested, a separate Scottish Crown Estate commission. Indeed, I had rather assumed that that would be forthcoming. I regret to say that I do not have the Smith commission report with me now and I cannot quote the wording, but I was under the impression that the noble Lord, Lord Smith, anticipated some form of further decentralisation affecting this organisation. I do not believe that he thought that it should pass into the maw of the Scottish Government, for them to despoil or develop as they think fit. It has been immensely successful over the years and it deserves to be maintained, as my noble friend Lord Sanderson said. It should, of course, be accountable to the Scottish Parliament and its Ministers, just as happens in the United Kingdom with the Crown Estate.

On Fort Kinnaird, I echo what my noble friend Lord Sanderson said. This is a separate venture, not a wholly-owned part of the Crown Estate Commission. To intervene in a joint venture with an outside commercial body, which is maturing well and is part of a good, well-established relationship with that body, would jeopardise the interests of both the outside partner and the estate commission itself. Therefore it was and remains right not to interfere with the arrangement but to allow it to continue. To force some kind of disposal might jeopardise the venture itself and the Scottish Crown Estate commission to some extent. That cannot be in the interests of anyone involved in this debate. So I support what the noble Earl, Lord Kinnoull, said and I hope that the Minister will respond favourably.

Lord Hope of Craighead (CB): Just as a footnote to the point that noble Lords have made about Fort Kinnaird, one can see from the Crown Estate commissioners website the structure of the venture that has been described. The Crown Estate commissioners themselves have,

“a 50 per cent interest in an English Limited Partnership which owns Fort Kinnaird Retail Park in Edinburgh”.

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The venture is a partnership. The ownership and presumably the management of Fort Kinnaird are in the hands of the partnership and I take it that the commissioners draw a revenue out of that arrangement.

That takes one to the essence of the role of the commissioners, as described on their own website, which is one of management of the resources in order, as they put it,

“to deliver the best value over the long term”.

Of course, the interest for the UK Government at present is in the revenue. The commissioners make it clear that their function is to pay all the “annual revenue profit” to the Government. I would have thought it absolutely crucial to maintain that position, that in so far as the assets are concerned, they are managed in the broad interest of maintaining the assets for the best value. Of course, the revenue would then be transmitted to the Scottish Government, as would be consistent with the present position. That distinction between capital and revenue management and payment is absolutely crucial to the point that various other noble Lords have been making.

Lord Mackay of Drumadoon (CB): As my name can be found in some proximity to the amendments that are being discussed in this opening round of speeches, I do not intend to go into any great detail about what we have heard. I am, however, struck by the fact that people are talking as if the best way forward will involve a significant measure of respect and agreement and will not give any excuse for a deterioration in the relationship between the voters, which was to some extent apparent when devolution came along.

It falls to me, in view of one of the speeches that we have heard, to declare an interest that during a period of years when I was actually a Member of your Lordships’ House, prior to becoming a High Court judge in Scotland, I spent quite a lot of my time working with companies in the electricity industry. It fell to me to give them advice when they sought it and to work with them on a practical basis when they set about seeking the erection of a new power station or some other building associated with a power station or the erection of new electricity wires to take electricity to different parts of Scotland and, indeed, further afield.

I appear in this debate having received a brief from the Law Society of Scotland, which takes an interest in these matters. It is clear from what has been suggested to me that it is not alone in encouraging agreement. On that basis, I invite Members of your Lordships’ House to rely on the proposals which, as I say, are proximate to my signature.

The Parliamentary Under-Secretary of State, Scotland Office (Lord Dunlop) (Con): My Lords, I thank all those who have contributed to this debate: the noble and learned Lords, Lord Davidson, Lord Wallace, Lord McCluskey, Lord Hope and Lord Mackay; the noble Earls, Lord Kinnoull and Lord Dundee; and the noble Lord, Lord Sanderson, and the noble Baroness, Lady Liddell. We have had some very good contributions and I am very sympathetic to the intent of many of the points that have been raised.

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The Bill’s provisions on the Crown Estate were debated at length in Committee in the other place and some of the points raised then have also been raised today. As has already been mentioned by a number of your Lordships, the Law Society of Scotland, which I met last week, has also taken a close interest in these clauses and has suggested amendments, some of which have been taken up by noble Lords. In particular, noble Lords have raised issues around the way in which we have sought technically to give effect to the Smith agreement, the importance of establishing an arm’s-length body, double devolution, and specific issues around Fort Kinnaird and other topics. I welcome this opportunity to set out the Government’s position and approach to these clauses.

As noble Lords will be aware, the Smith commission agreed that responsibility for the management of the Scottish assets of the Crown Estate would be devolved. The agreement also stated that the Scottish Government should receive the revenue generated from the management of those assets, as has already been referred to. The Bill therefore provides for the existing Scottish functions of the Crown Estate commissioners to be transferred to Scottish Ministers by way of a transfer scheme, which will be set out in a statutory instrument made after the Bill receives Royal Assent. The Bill also provides that the revenue from the Scottish assets will be paid into the Scottish Consolidated Fund after the transfer.

In readiness to take over the management functions after the transfer has taken place, the Bill also enables the Scottish Government to make arrangements in advance of a transfer, for example to establish a management body and appointments to that body—I will return to that in a moment to pick up on what the noble Earl, Lord Kinnoull, said—via an Order in Council made by Her Majesty, and subject to the affirmative procedure before the Scottish Parliament. Following the transfer, the Scottish Parliament will have competence to legislate about the management of the Scottish assets, which will enable it to legislate in particular for further devolution to the islands and other areas seeking such responsibilities, as the Smith agreement recommended. At this point I can confirm to the noble and learned Lord, Lord Wallace, that I would be very happy to meet the islands councils. I will come back to double devolution in a moment.

Turning first to some other points that have been raised, in looking at Amendment 43 I liked in particular my noble friend Lord Lang’s comment about dynamic junior Ministers and the distinction, if there is one, between “may” and “must”. The parties opposite are seeking to make it mandatory for the Treasury to make the transfer scheme. Amendment 44 would make it mandatory for the scheme to be made, following agreement with the Scottish Ministers. First, I reassure noble Lords that the clause already provides, at subsection (17) of new Section 90B, that the Treasury cannot make the scheme without the agreement of Scottish Ministers. The majority of the scheme is not expected to be contentious but for those aspects which need to be negotiated, we think it right that agreement is reached between the Treasury and Scottish Ministers.

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The clause as drafted, with the use of “The Treasury may” together with the requirement for the consent of Scottish Ministers, provides the right incentives for both parties to reach agreement and for a level playing field in the negotiations. The UK Government represent the interests of all people in the United Kingdom and, if this amendment were made, the ability to represent these interests would be constrained as the Treasury would be under a statutory duty to make a scheme, the discharge of which could be fulfilled only with the co-operation of a body beyond its control. As the scheme contains important protections for defence and national security, it is imperative that both sides are able to come to an agreement on the detail.

Secondly, the Treasury still cannot necessarily make the scheme even after the agreement of Scottish Ministers, since both Houses of Parliament must also approve the draft scheme before it can be made by the Treasury. I reassure the Committee that the Government are committed to making a scheme. Implementing in full the Smith commission agreement is a manifesto commitment; the provisions relating to the Crown Estate are an important part of that. However, actions speak louder than words. For example, we made an outline of the scheme available to the House last summer and in November we placed a copy of a draft scheme and memorandum of understanding in the Libraries of both Houses. Officials are currently in discussion to reach agreement on the detail of the draft scheme. After the draft scheme is agreed, it will be brought before both Houses of the UK Parliament and, if it is approved, it will be made by the Treasury and the transfer will occur on the date specified in the scheme. I hope that I have been able to reassure noble Lords on the Government’s commitment in this regard.

4.30 pm

The noble and learned Lords, Lord McCluskey and Lord Mackay of Drumadoon, and other noble Lords, referred to Amendment 51. As with the amendments on the language in the clause, amendments relating to the type of procedure to approve the scheme were also tabled in the other place. I am pleased to confirm that the Government’s approach is to recognise the importance of this transfer, which is why Clause 34(5) provides that the Crown Estate transfer scheme must be approved by each House of Parliament. This is the usual draft affirmative procedure—the type C procedure. The Crown Estate transfer scheme will contain important protections for critical national infrastructure, including protections for defence and national security. A number of these important protections are reserved matters, and for this reason it would not be appropriate to require that the transfer scheme and any amendments to it are subject to the approval of the Scottish Parliament. However, let me be clear that the scheme must be approved by Scottish Ministers before it is made. Furthermore, the transfer scheme will be subject to the scrutiny of MPs and Peers from all parts of the United Kingdom.

I now turn to the amendments in the name of the noble Earl, Lord Kinnoull, who spoke passionately about stewardship and the future arrangements of the Crown Estate. Amendments 45 and 47 seek to address

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concerns about the arrangements which will govern the management of the Crown Estate in Scotland in the future. Other noble Lords have expressed views on this matter. Your Lordships will be aware that the Smith commission agreement stated that responsibility for the management of the Scottish assets of the Crown Estate will be transferred to the Scottish Parliament. However, the Scottish Parliament is a legislative rather than an executive body and, for that reason, is not equipped to undertake the management functions. Hence the clause confers the ability to legislate in relation to the management of the Scottish assets on the Scottish Parliament, but the management functions relating to the Scottish assets are to be transferred to Scottish Ministers, to an executive body or to such other transferee body as they nominate.

The noble Earl’s amendments suggest a more directive approach to the devolution of management of the Crown Estate in Scotland, including specifying that there should be Crown Estate commissioners and setting out their powers and functions. Of course I fully understand why the noble Earl has laid these amendments, and the good intent that lies behind them, but if we really intend for devolution to be meaningful, we cannot tie the hands of the Scottish Government in the way set out in these amendments. We cannot, on the one hand, devolve the management of the estate and, on the other, dictate the way it is managed. It is right that the Scottish Government are able to manage the Crown Estate in the best interests of the people of Scotland and it is equally right for the people of Scotland and the Scottish Parliament to hold the Scottish Government to account for that.

Having said all that, my understanding is that the Scottish Government’s initial intention is to transfer the management functions to a single organisation for the short to medium term, which is not entirely dissimilar to the current arrangements for the Crown Estate. As the Committee will know, the current manager of the Crown Estate, the Crown Estate Commission, is an independent commercial organisation. It is not an instrument of government policy, but nevertheless it is a public body. The Treasury is its sponsor department and has general oversight of the Crown Estate’s business.

I hope it will give the noble Earl some reassurance that, to facilitate a similar approach, the Scottish Government requested that we make an amendment on Report in the other place, which we did. Clause 34(9) enables the Scottish Government to put in place preparatory arrangements in advance of the transfer by means of an Order in Council. We have amended Clause 34(10) to make it plain that any such Order in Council may establish a body to undertake the management of the Scottish assets. The power includes the ability to make any necessary appointments to such a body. We made this amendment to ensure that the Scottish Government have the power they need to make all the arrangements necessary for the transfer. We want to do everything we can to facilitate the smooth transfer of management.

After the transfer, the Scottish Government intend to run a public consultation to establish the long-term future of the management of the Scottish Crown Estate assets. I am sure that the Scottish Government,

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who follow the proceedings of this House very closely, will have heard the contributions and the sense which this House is conveying on the matter. I agree with the noble Earl that Scottish assets should be managed responsibly. Stewardship is vital, and it is the duty of this House and of the people of Scotland to call on the Scottish Government to be clear about their plans for the future management of the assets.

I now turn to the issue of so-called double devolution and Amendment 48A. The noble and learned Lord, Lord Wallace, has spoken eloquently about so-called double devolution of the Crown Estate. I know that this is something that his party advocates; indeed, it was raised in the other place by his right honourable colleague. Devolution within Scotland is an aspiration shared on these Benches. As my right honourable friend the Secretary of State for Scotland said in a recent speech:

“Devolution is not worthy of the name if it stops at the gates of Holyrood”.

However, although I acknowledge the sentiments behind the amendment, I hope that it will not come as a surprise to the noble and learned Lord to learn that the Government do not support it. As the Secretary of State for Scotland said in the same speech, with respect to the proposal that the UK Parliament should legislate directly for double devolution:

“That is the right intention, but the wrong approach”.

Indeed, as the Government stated in the other place, we believe that the Scottish Parliament should decide how further devolution within Scotland will occur. The Secretary of State has said:

“The Scottish Parliament and Scottish Government are responsible for local government in Scotland and it is their responsibility to drive that devolution onwards”.

We must all hold them to account for that. I have been encouraged by what Minister Lochhead said in front of the Scottish Parliament: that he recognises that there is desire on the part of local communities to take on in their area the functions of the Crown Estate.

Lord Wallace of Tankerness: I am grateful to the Minister for giving way and for the way he is responding. Does he accept that there is a difference between the amendment moved by my right honourable friend Alistair Carmichael in the other place, Amendment 48, which was withdrawn, and the one we are now debating, which provides that the scheme for double devolution would be a Section 90B scheme, which, as the Minister has been at great pains to emphasise, will take place only with the agreement of Scottish Ministers? The amendment makes subsequent provision that it will be Scottish Ministers who make the transfer. So Scottish Ministers would be very much involved. Indeed, if the Minister were to accept my amendment to,

“leave out ‘C’ and insert ‘A’”,

the Scottish Parliament would have a role, too.

Lord Dunlop: I note what the noble and learned Lord says, and I will reflect on his point; I am sure that we will continue to discuss it.

The clause enables the Scottish Parliament to make its own legislation about the management of the Crown Estate in Scotland after the transfer—and beforehand, should it wish to have arrangements in place in readiness

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for transfer. The Scottish Government have already made commitments to devolution to island communities. In the document

Empowering Scotland’s Island Communities

, which has already been referred to, the Scottish Government have committed to ensuring that 100% of the net income of the islands’ seabed is passed to island communities. The Scottish Government have also said that they intend to consult on the future arrangements of the Crown Estate. Therefore, as I said, although I am sympathetic to the sentiments that have been raised about this issue, the Government do not believe that it is appropriate for the Bill to set out any onward arrangements for devolution to local communities. That is a matter for the Scottish Parliament. I look forward to hearing more from the Scottish Government on their further plans as they develop them.

I turn to Amendment 46. Clause 34 provides for a transfer scheme that would transfer all the existing Scottish functions of the Crown Estate commissioners to Scottish Ministers or to a person nominated by them. The amendment seeks to change the entity to which the transfer of those executive functions is made from Scottish Ministers to the Scottish Parliament; several noble Lords referred to this.

I note that the right honourable colleague of the noble and learned Lord opposite also tabled this amendment in the Commons in Committee. The Smith commission agreement stated that responsibility for the management of the Crown Estate and the revenue generated from those assets would be transferred to the Scottish Parliament. However, the Scottish Parliament is a legislative rather than an executive body, as I have already said, and for that reason it is not equipped to undertake the management functions that are currently exercised by the Crown Estate commissioners. The Law Society of Scotland also observed that the transfer is to the Scottish Ministers rather than the Scottish Parliament, and noted that there are good practical reasons why this should be so—not least that the Parliament does not exercise its executive powers.

Lord McCluskey: The Smith commission report states in paragraph 32 that what was to be transferred to the Parliament was not the management but the “responsibility for the management”, so Parliament would then decide what agency, if other than the Scottish Executive, would manage the estate. Surely, that is the important point.

Lord Dunlop: We feel that in the clause, in giving the Scottish Parliament the legislative competence but then facilitating the executive competence of the Scottish Government, we have got the balance right.

As I was saying, the clause transfers management functions relating to the Crown Estate to the Scottish Ministers, which means that the Scottish Parliament has the ability to legislate in relation to such management functions. That gets the right balance and gives effect to the Smith commission agreement in what it intended to achieve.

I turn to some of the specific points that were raised —in particular, Fort Kinnaird, which I believe some people thought was a Ministry of Defence base but turns out to be a shopping centre in Edinburgh. I very much agree with what my noble friends Lord Lang and Lord Sanderson have said about this and the

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importance of not upsetting joint arrangements built on trust. The management of all the Crown Estates, wholly and directly owned Scottish assets, will be transferred under the transfer scheme. Fort Kinnaird, as has already been said, is not wholly and directly owned by the Crown; it is held by an English limited partnership in which the Crown Estate commissioners manage interests alongside other commercial investors. The partnership owns property in other parts of the United Kingdom, and Fort Kinnaird has never been wholly and directly owned by the Crown. It was brought into the partnership by the commissioners’ joint venture partner, the Hercules Unit Trust, and is managed by British Land. Revenue from the Crown Estate’s interests in Fort Kinnaird will therefore continue to be passed to the UK consolidated fund for the benefit of the UK as a whole.

I am very happy to confirm for the noble Baroness, Lady Liddell, that I shall take her specific point away and write to her on the offshore renewables catapult. The noble Earl, Lord Kinnoull, talked about protections for the assets of the Crown Estate. The current managers of the Crown Estate commissioners are under an obligation to maintain an estate in land, so it is appropriate to pass on this obligation as part of the transfer of management. The new manager may make changes to the pool of assets that make up the estate under its management; it can sell some assets but must reinvest the proceeds, bringing new assets into the estate. But the new managers must maintain an estate in land; they cannot convert the estate in its entirety to liquid assets to fund public spending. An estate in land in the ownership of the Crown must be retained for the future; that is an important point of stewardship.

I hope I have been able to provide some clarity on the approach and reassurance on the Government’s commitment to make a scheme. Therefore, I ask the noble and learned Lord to withdraw his amendment.

4.45 pm

Lord Davidson of Glen Clova: My Lords, this has been a useful and quite technical discussion. I thank the Minister for his clarifications, particularly on the use of the term “may”. I am particularly obliged to the noble Lord, Lord Lang, for his historical analysis identifying that “may” means “must”. I pondered whether that means that “must” means “may”, but that is doubtless a question for another day. I was also attracted by my noble friend Lord Gordon clinging to the word “shall”. That seems to have a certain helpfulness to it. I trust the Minister will reflect on the point made by the noble and learned Lord, Lord McCluskey, about the Scottish Parliament and responsibility. It certainly chimes with the notion behind the amendment this side advanced. I beg leave to withdraw the amendment.

Amendment 43 withdrawn.

Amendments 44 to 47 not moved.

Amendment 48 had been withdrawn from the Marshalled List.

Amendments 48A to 51 not moved.

Clause 34 agreed.

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Clause 35: Equal opportunities

Amendment 52

Moved by Lord Davidson of Glen Clova

52: Clause 35, page 37, leave out lines 6 to 23 and insert—

““The subject-matter of Part 11, Chapter 1, of the Equality Act 2010 (public sector equality duty).

(none) Equal opportunities in relation to the Scottish functions of any Scottish public authority or cross-border public authority including appointments to the board of any Scottish public authority. The provision falling within this exception includes provision that reproduces or applies an enactment contained in the Equality Act 2006 or the Equality Act 2010 without affecting the enactment as it applies for the purposes of those Acts. It does not include any modification of those Acts, other than modifications of the types specified in paragraphs (a) to (e)—

(a) provision that supplements or is otherwise additional to provision made by those Acts, and which may enhance but may not diminish the protection and promotion of equal opportunities afforded by the provision made by those Acts;

(b) in particular, provision imposing a requirement to take action that the Acts do not prohibit;

(c) provision that extends application of the existing powers and duties of, or grants additional powers to, the Equality and Human Rights Commission in respect of provisions made under any part of subsection 149(3) of the Equality Act 2010 (public sector equality duty);

(d) provision that requires the Equality and Human Rights Commission to attend the proceedings of the Scottish Parliament for the purposes of giving evidence and to send each annual report of the Commission to the Scottish Ministers and that requires the Scottish Ministers to lay each annual report received before the Scottish Parliament;

(e) provisions in relation to candidates at an election for membership of the Scottish Parliament and a local government election in Scotland.””

Lord Davidson of Glen Clova: I rise to speak to the amendment standing in my name and that of my noble friend Lord McAvoy. This amendment has a variety of different effects, but the overall intent is to ensure that the Scottish Parliament has the capacity to—I use the term my noble friend would have used had he been here—smash the glass ceiling of equality in public and political life.

The amendment makes provision for the Scottish Parliament to have legislative competence in respect of the public sector equality duty. It also makes provisions for equality of opportunity in relation to the functions of Scottish and cross-border public authorities. It clarifies that the Scottish Parliament can make modifications to the Equality Acts 2006 and 2010, but only in so far as they enhance the protection and promotion of equal opportunities. It makes provision for the powers of the Equality and Human Rights Commission to be applied in relation to any modifications to the aforementioned Acts as well as increasing the accountability of the commission to the Scottish Parliament. Crucially, it would also allow the Scottish Parliament to bring forward the necessary competence for gender quotas in relation to candidates standing for the Scottish Parliament and at local government elections.

The Bill before us already includes the ability to legislate for women’s representation on public boards, which of course is welcome, but we want to see that go

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further. We want to ensure that there is a commitment to bring about equality in every walk of Scottish life, including in politics itself. We are now in a position where the economic case for women’s equality in public life has been made and won. It could not be clearer. One of the contributors to this change in attitude is found in the work of my noble friend Lord Davies of Abersoch. His contribution to the debate should not be understated. In his final report he stated:

“It is a sign of our evolution ... that few British business leaders now ask why we need more women at the top, the business case is raised less and less as energies are now focused on how to achieve women in leadership positions and how to sustain the change”.

He also says:

“The business case is even stronger today as Chairs report on the positive impact women are having at the top table, the changing nature of the discussion, level of challenge and improved all round performance of the Board”.

However these successes should not be limited to one particular field. Scotland has come a long way on equality, with women leading the majority of the political parties in the Scottish Parliament, a female First Minister and a female Presiding Officer. But we say that that is still not good enough. In the Scottish Parliament only 36% of MSPs are women, while local government is falling way behind, with apparently only around 20% of women elected councillors. It is this discontinuity that lies behind the notion of candidate quotas in parliamentary and local elections.

I stress that this is not a party-political point, nor should it be. For us to bring about a change in culture and attitudes, we need support from all political parties and buy-in from a cross-section of our society. This is why the tireless work of campaigns such as Women 50:50 is so important. I pay tribute to its contributions in this field and thank it for its assistance in advance of Committee.

At present there are too many barriers preventing women from reaching their full potential, in Scotland and indeed across the UK. The low number of women studying STEM subjects and the prevalence of low pay among women in Scotland fortify this point. One is seeking with this amendment to address this particular obstacle. Kezia Dugdale, the Labour leader in Scotland, is doing just that, along with Members across the Scottish Parliament, with her commitment to ensuring that at least half of Scottish Labour’s new candidates for this year’s Holyrood elections will be women. It is a crucial commitment, but we now need the tools to get on and deliver on a wider scale. We believe that this amendment is the mechanism for doing that. I beg to move.

Lord Stephen (LD): My Lords, I shall speak to the amendments in my name and that of my colleague, my noble and learned friend Lord Wallace of Tankerness. As has been stated, Clause 35 relates to the important issue of protection from discrimination and the promotion of equality of opportunity. These are fundamental markers of a fair and decent society. The protections in the law should be strong, and the meaning and effect of Clause 35 must be clear. I believe that we have not yet achieved the parity that is both important and required.

The Equality Act 2010 is widely held to be perhaps the best anti-discrimination law in the world. Thanks to the Act, wherever you live or work in Great Britain,

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you have a right to fair treatment regardless of your sex, race, age or sexual orientation or if you are disabled. Clause 35 needs to be explicit that the important protections in the Equality Act will be maintained right across Great Britain, and that modifications should be permitted by the Scottish Parliament only where they enhance the protections in the present legislation. As currently drafted, Clause 35 does not yet achieve that. While there is an attempt to differentiate between modifications to the Equality Act 2010, which are not permissible, and additions, which are, these provisions lack the required clarity. I thank the Equality and Human Rights Commission for its support and advice in framing these amendments.

Amendment 52A would make it absolutely clear that the Scottish Parliament had powers to increase protection from discrimination, harassment and victimisation by Scottish public bodies by, for example, adding new protected characteristics, prohibiting dual or multiple discrimination or enhancing remedies. It would also ensure that existing productions could not be eroded in Scotland.

The public sector equality duty is a positive duty, requiring public authorities and those delivering public functions to have regard to how they can promote equality of opportunity. It has great potential to play a transformative role for those experiencing disadvantage and discrimination. Amendment 52A would give the Scottish Parliament greater freedom to require Scottish and cross-border bodies that deliver public services in Scotland to do more to tackle entrenched inequality. We have already seen how the stronger specific equality duties in Scotland have driven greater transparency on the pay gap, for example, which means that it is clearer where action now needs to be taken. To devolve legislative competence for the general equality duty would give the Scottish Parliament far greater freedom to require its public service providers in Scotland to do even more positively to promote equality of opportunity.

The amendment would also ensure that the Smith commission commitment on gender quotas is delivered, while ensuring that the Scottish Parliament could not go beyond the extent to which positive action is permitted by EU law. We want to increase the efforts made to ensure that women have fair representation on public boards, in Scotland and elsewhere in Great Britain, but this must not be achieved through disproportionate barriers to participation by men.

On political representation, Amendment 52A, taken together with Amendment 52E, would enable the Scottish Parliament to allow political parties to take stronger action to ensure greater diversity in their selection of candidates for the Scottish Parliament and Scottish local government elections. However, the Scottish Parliament would not be able to legislate to extend the use of shortlists restricted to those sharing other protected characteristics. While this approach may be appropriate for women, who make up over 50% of the population, it would be disproportionate if it were to be used for far smaller groups, as it would thereby exclude very large sections of the population from such shortlists. These amendments reflect the position in the Equality Act 2010, which was widely debated and agreed by all parties at the time to be a proportionate, fair and appropriate position.

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Amendment 52B relates to diversity on public boards. It would remove an interpretation of the term “protected characteristic” which would limit the ability of the Scottish Parliament to encourage diversity on public boards with regard to any characteristics not currently protected by the Equality Act 2010, such as marital status. The Scottish Parliament should have the power to go further than the current protections, should it wish, on this important issue. Amendment 52C may be covered by the government amendments, and I look forward to the Minister’s clarification on this and his response to the other issues that I have raised.

Lord Dunlop: My Lords, I echo what the noble and learned Lord opposite and the noble Lord, Lord Stephen, said. The Government are committed to safeguarding equality, tackling discrimination where it arises and promoting transparency; for example, in pay. That is not to say that supplementary initiatives and protections in addition to those offered by the Equality Act do not have a part to play, as the Smith commission saw.

The equality provisions in the Bill relate to public sector bodies in Scotland and will enable the Scottish Parliament to make provision for the promotion and enhancement of equality in the public sector without any extension to the private sector. That is an important point to make; I know that that issue was raised by the House of Lords Constitution Committee. It is important to remember that the Smith commission was explicit that the Equality Act 2010 as a whole is to remain reserved. The Government are confident that the Bill ensures that the benefits of a cohesive framework of discrimination law remains across Great Britain.

In delivering Smith, the equal opportunities clause strikes the right balance between conferring greater competence on the Scottish Parliament for safeguarding and promoting equalities in public bodies and the importance of preserving a GB-wide legal framework. The Government’s delivery of paragraph 60 of the commission agreement ensures that we continue to reserve the 2010 Act while providing the Scottish Parliament with the ability to legislate for specific provisions such as gender quotas. Through the general exception that we are providing, the Scottish Parliament will be able only to add to and supplement the 2010 Act. It will not be able to reduce protections but, instead, will be limited to increasing and promoting protections in relation to public bodies.

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On the specific issue of board appointments, the Scottish Parliament will be able to modify the 2010 Act if necessary—for example, to introduce gender quotas. The Government are confident that this is the right approach and that it delivers the benefits of devolution while, as I said, retaining the GB-wide equality framework.

Amendments 52 and 52A to 52E, tabled by the parties opposite, would have a number of effects. First, the public sector equality duty would be fully devolved. The Smith commission did not call for further devolution of the public sector equality duty and indeed specified, as I said, that the Equality Act 2010 should remain reserved. This does not mean that the Scottish

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Government are unable to act in this area. While the PSED as a whole is reserved, there is already some devolved executive competence.

Scottish Ministers already have wide-ranging devolved powers, for example, under the PSED, which enable them, through the setting of specific duties, to require Scottish public authorities to update and publish equality statements, report on their performance in relation to equalities and add bodies that are subject to the devolved duties. Scottish Ministers can, for example, require gender pay gap information to be published by Scottish public authorities—something the Government are also planning to implement for larger private employers across Great Britain. These provisions, which have undergone revision as a result of wide-ranging engagement with stakeholders and the Scottish Government, build upon these existing powers and will give the Scottish Government new freedom in setting equality and diversity requirements for public bodies.

The removal in Clause 35 of the statutory obligation for Scottish Ministers to secure the consent of the Secretary of State before they can specify Scottish public authorities is in keeping with the Smith commission’s agreement on the devolution of further equalities powers in respect of public bodies. However, devolving the duty itself is a step too far and risks creating additional burdens for private and voluntary sector bodies that provide services to the public sector. This could occur through the imposition of excessive contractual requirements. For example, requiring Scottish public bodies to ensure that private service providers report on their gender pay gaps as a contractual condition would be burdensome, especially to smaller employers. I remind the Committee that the review in 2013 of the operation of the public sector equality duty by my noble friend Lord Hayward highlighted the risk of creating barriers for smaller charities or companies tendering for public contracts.

The Smith commission did not agree to devolve PSED and the Government are committed to continuing the benefits of nationwide equality coherence, with scope for national differentiation through specific duties where appropriate and workable. Full devolution of the PSED would alter this careful balance.

Secondly, Amendment 52 would enable the Scottish Parliament to confer new functions on the Equality and Human Rights Commission. The commission, which was established through the Equality Act 2006, is a reserved body under the Scotland Act 1998, with no legislative competence resting with the Scottish Parliament. The commission is independent of, but funded by, the Government. At this point, I acknowledge the important work of the EHRC in Scotland as in the rest of Great Britain. The Government are committed to retaining the EHRC’s status and its key role of promoting consistency across the country in the enforcement of anti-discrimination laws.

The Smith commission did not call for further powers to be devolved to the Scottish Parliament in respect of the EHRC, which is, and will continue to be, a reserved body. The Government do not think that it would be appropriate to impose, or permit the Scottish Parliament to impose, new enforcement requirements or duties on the EHRC when the nature and application

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of any new Scottish legislation remains unknown. The EHRC already has a significant role in providing advice to the Scottish Parliament. It has a Scotland commissioner and a Scotland committee, which has the delegated powers of the commission to advise the Scottish Government on the effect of legislation or a proposed change in the law. Officers of the EHRC and the commissioner already appear before the Scottish Parliament, and the commission sends its annual report to the Parliament. We believe that this is an appropriate level of involvement and engagement.

It might be convenient for the House if I introduce at this point government Amendments 52AA to 52AF and 52CA. These are technical amendments that remove unnecessary references to the 2006 Equality Act, which have no effect on the current drafting. The Equality Act 2006 has partly been superseded by the Equality Act 2010, and it now mainly contains provisions relating to the operation of the Equality and Human Rights Commission. As set out in the Scotland Act 1998, the EHRC is, as I have already said, a reserved body and will remain so. The Scottish Parliament is not able, therefore, to replicate or supplement the provisions of the 2006 Act, so we are proposing to remove the reference to it in Clause 35. I appreciate that noble Lords have queried the misleading reference to the 2006 Act in the clause. The Government’s proposed amendment will ensure that there is no misunderstanding going forward.

Thirdly, I turn to Amendments 52 and 52A, which would enable the Scottish Parliament to introduce equality requirements to elections to political office. Shortlisting electoral candidates on the basis of sex and diversity reporting on candidates are provisions in the Equality Act 2010, which will remain reserved. If the intention of the Smith commission was to devolve equal opportunities in that regard, this would have been made clearer in its conclusions. In fact, it made the opposite position clear, stating that,

“the Scottish Parliament will have no powers over the regulation of political parties”.

Section 104 of the Equality Act 2010 allows registered political parties to make arrangements in relation to the selection of election candidates to address the underrepresentation of people with particular protected characteristics in elected bodies. Section 106 of the Act gives a Minister of the Crown power to make regulations requiring registered political parties to publish diversity data for candidates. Although Section 106 has not been commenced, there is nothing to prevent political parties in Scotland, or elsewhere in Great Britain, reporting on the diversity of their candidates on a voluntary basis. Indeed, this may be an area for lively political competition.

Fourthly, Amendment 52 would allow the Scottish Parliament to create new protected characteristics for board appointments and quotas. The Government believe that the equality provisions in the Bill deliver the intent of the Smith commission agreement in what is a complex area of law. The clause is the result of careful consideration and reflection on comments of stakeholders, including the Scottish Government, and we are confident that it strikes the right balance. The Smith commission stated that devolution of equal opportunities relating to public bodies should not be limited to provision for gender quotas. The Government

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took notice of that and we are giving the Scottish Parliament the ability to go further. An example is the ability of the Scottish Parliament to introduce new protected characteristics on top of the nine already in the Equality Act 2010, which include sex, race and disability. This would give the Scottish Parliament greater flexibility when imposing new equality requirements on public and cross-border bodies in Scotland that exercise devolved functions.

The drafting of Clause 35 does limit the more specific exception for board appointments on public bodies to those protected characteristics already listed in the Equality Act. This does, however, include eight other characteristics, over and above the specific requirement of Smith. The two exceptions in Clause 35 call on some variation in their detail but still provide the Scottish Parliament with devolved competence, as detailed in Smith, and more. This is to ensure that the provisions do not become a barrier to recruitment, an issue that the noble Lord, Lord Stephen, raised; one might argue that having more than two or three concurrent quotas would make it more difficult to satisfy them and recruit suitable candidates for board appointments.

I hope that I have been able to clarify the position, and I ask that the parties opposite withdraw their amendment.

Lord Davidson of Glen Clova: I thank the Minister for his explanations both generally and in relation to the Government’s technical amendments. We on this side are pleased to note that Her Majesty’s Government have no ideological objection to gender quotas, and we will take that away and consider it. Accordingly, I beg leave to withdraw the amendment.

Amendment 52 withdrawn.

Amendment 52A not moved.

Amendments 52AA to 52AF

Moved by Lord Dunlop

52AA: Clause 35, page 37, line 14, leave out “the Equality Act 2006 or”

52AB: Clause 35, page 37, line 15, leave out “those Acts” and insert “that Act”

52AC: Clause 35, page 37, line 18, leave out “those Acts” and insert “that Act”

52AD: Clause 35, page 37, line 20, leave out “the Acts do” and insert “that Act does ”

52AE: Clause 35, page 37, line 22, leave out “those Acts” and insert “that Act”

52AF: Clause 35, page 37, line 23, leave out “those Acts” and insert “that Act”

Amendments 52AA to 52AF agreed.

Amendments 52B and 52C not moved.

Amendment 52CA

Moved by Lord Dunlop

52CA: Clause 35, page 37, line 32, leave out from first “Act” to “are” in line 33 and insert “2010 and any subordinate legislation made under that Act”

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Amendment 52CA agreed.

Amendments 52D and 52E not moved.

Clause 35, as amended, agreed.

Clause 36 agreed.

Clause 37: Tribunals

Amendment 52F

Moved by Lord Wallace of Tankerness

52F: Clause 37, page 39, leave out lines 22 and 23

Lord Wallace of Tankerness: My Lords, this amendment is in my name and that of my noble friend Lord Stephen. It relates to the devolution of tribunals, which we very much welcome. There is much administrative sense in bringing together under one umbrella organisation the different tribunals in relation to reserved and devolved matters, although quite clearly there is still a reservation, which we support, for matters involving national security. Clearly, we have a new arrangement under the Tribunals (Scotland) Act 2014, with the courts and tribunals services coming together. Therefore, there is an umbrella organisation that will allow currently reserved tribunals to be devolved. I suspect that it would not make sense to transfer them all at once. That is why we have this scheme.

It is a complex provision. On the one hand, it appears to unreserve tribunals but only to the extent that they are provided for in a subsequent Order in Council. We unreserve with one hand and re-reserve with another, possibly with something akin to a Section 30 order to devolve them at a later stage. Again, I do not necessarily quibble with that means of doing it: the Government face a complex challenge. The Law Society of Scotland raised questions at an earlier stage about whether the position in the Bill as originally introduced in the other place was consistent with meeting the Smith commission recommendations. It is readily acknowledged that there was a significant redrafting of these provisions when the Bill was in another place.

Amendment 52F would remove the employment tribunal and the Employment Appeal Tribunal from the scope of the Order in Council referred to in new sub-paragraphs (4) and (5). As I understand it, new sub-paragraph (1) would be given full effect immediately with regard to the employment tribunal and the Employment Appeal Tribunal, bearing in mind that these tribunals are outwith the jurisdiction of the Tribunals, Courts and Enforcement Act 2007, so they would not qualify to be incorporated in an Order in Council where there might be a qualified transfer. The amendment is to seek the Government’s view. If the tribunals remain subject to a qualified transfer, could the Government try to insist on conditions such as that the current fee structure and charges for people seeking to access employment tribunals could be stipulated in any qualified transfer? We think that it would be far better if these matters were now devolved to the tribunal service in Scotland.

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Amendment 52G seeks to clarify new paragraph 2A(8)(b)(i), which provides that an Order in Council under this clause may contain provisions which are designed to secure,

“consistency in any respect in practice or procedure or otherwise between the Scottish tribunal and other tribunals”.

It is acknowledged that consistency of practice and procedure between a Scottish tribunal and other tribunals in an area such as employment law or otherwise may be desirable, but to have such a catch-all provision allows a broad range of consistencies to be applied and may indeed be interpreted as somewhat limiting the decision-making power of the tribunal judges. It is therefore incumbent on the Government, in bringing forward this proposal, to make clear what they mean by “or otherwise”. It would be unfortunate if what is being sought by this is some kind of uniform decision-making.

I can see a strong case for consistency where there is UK-wide legislation between what happens in Scotland and what happens in England, but there is a difference between seeking consistency and imposing uniformity. For years we have had company law where there can be a different interpretation in the Court of Session from the English Court of Appeal, albeit that the same company law applies across Scotland. Cases used to be able to go to the House of Lords and now to the Supreme Court, and we would get a consistent decision that applied across the country, but if one takes criminal matters where there is UK-wide law such as in road traffic legislation or the Misuse of Drugs Act, unless there is a compatibility issue such cases in Scotland would not come to the Supreme Court. You could well end up with different interpretations north and south of the border. Indeed, that has been the situation since, dare one say, 1707 and it has not meant that the heavens have fallen in.

As I say, under existing legislation and in the present situation with tribunals, different decisions can be reached. There was a case in 2013 from the Upper Tribunal Asylum and Immigration Chamber to the Inner House of the Court of Session—M Ab N and KASY v The Advocate-General for Scotland and the Home Secretary. In that case the learned Lord Eassie said:

“I am naturally very conscious of the undesirability, in a matter of United Kingdom wide jurisdiction, of the courts in its respective constituent parts of the United Kingdom reaching divergent decisions. But it respectfully seems to me that in a situation such as the present appeals, in which the Court of Appeal in England and Wales appears not to have been favoured with the very full and much wider ranging submissions with which we were favoured and in which the issues are relatively new and not the subject of well settled authority, there is good reason wherefor a judge in one of those constituent parts should state his differing conclusion”.

Even under the law as it is at the moment, it is possible to come to different conclusions, and I think that we would be very concerned indeed if the words “or otherwise”, as they appear in this part of the Bill, were in some way or another to try to impose a means by which there would be uniformity.

Amendment 52H seeks to delete new paragraph 2A(7) and is in many respects a probing amendment. That particular sub-paragraph provides that other tribunals

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can be added to the list of tribunals whose functions are subject to the qualified transfer after this paragraph comes into force. It may be that this is future-proofing, but if it is more than that, it would be helpful if the Government would explain which tribunals are envisaged to be covered by this provision so that we are in a position to assess whether such a wide-ranging power is necessary.

As we are dealing with tribunals, I have one or two questions to ask of the noble and learned Lord, Lord Keen, who I believe will be responding to the debate. I recall having engaged with the tribunal judges in Scotland and I found that considerable importance was attached to the fact that, quite understandably and properly, there was a benefit in giving tribunal judges in Scotland the opportunity to sit from time to time in tribunals in England and Wales and vice versa. The learned experience was helpful to them in their work. In taking forward orders under this Bill, is it the Government’s intention to ensure that such reciprocity can continue? Perhaps the noble and learned Lord would look at the provisions under Section 50 of the Social Security Administration (Northern Ireland) Act 1992, which makes provision for commissioners from other jurisdictions within the United Kingdom to sit as deputy commissioners in Northern Ireland on social security tribunals. Likewise, there is provision in the 2007 legislation for those who are eligible to sit in Northern Ireland as deputy commissioners to sit on tribunals in Great Britain. It would be interesting to know whether the Government have it in mind to ensure that there is such reciprocity after the devolution of tribunals to Scotland.

Clause 37 makes it clear that this devolution is,

“so far as those functions are exercisable in relation to Scottish cases”.

Under new paragraph 2A(2), “Scottish cases” are to be given a meaning by “an Order in Council”.

If one takes, for example, immigration and there is a backlog, say, in Bristol, from time to time it is possible to shift some of the workload to Glasgow. It makes sense because, at the end of the day, the important thing is that those who are appealing to the tribunals should get their cases dealt with as swiftly as possible. That transfer of cases from Scotland or to Scotland, which is possible at the moment, has been to the benefit of those who are using the tribunal system. One would hope that it is still possible under the new arrangements to facilitate that but I would be interested to know how the Government intend to do it.

The clause states that provision may be made for an order for conditions relating to staff and accommodation. Clearly, there will be important matters with regard to staff and their entitlement. I hesitate to suggest that members of the judiciary fall under the definition of staff but there is an important issue here with regard to the judiciary. As regards tribunal judges, particularly those who serve in the Upper Tribunal in Great Britain appeals, can the noble and learned Lord the Advocate-General indicate what discussion there has been as to whether they wish to be transferred to the Scottish Upper Tribunal? Will they enjoy the same salary structure and pension arrangements as they have as judges in the Upper Tribunals in Great Britain? Will the Scottish

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public have access to the same level of judicial expertise under the new Scottish system as they do at present under the GB system?

Finally, the regulations are to be published. I think that it had been hoped by the Law Society of Scotland that we might have had an opportunity to see at least a draft regulation in respect of one of the tribunals to be transferred. I apologise if that has already been done and made available, but that I have not yet seen it. Perhaps the noble and learned Lord in his reply would indicate whether one has been put in the Library so that we can have an opportunity before Report to see what content these regulations will have. I beg to move.

The Advocate-General for Scotland (Lord Keen of Elie) (Con): My Lords—

Lord Davidson of Glen Clova: I know that the noble and learned Lord is enthusiastic to get to his feet. We on this side see some force in the amendments in the name of the noble and learned Lord, Lord Wallace, but I will confine myself to only one aspect. He observed that the question of fees in employment tribunals and Employment Appeal Tribunals might arise in a different sense were these tribunals to be fully devolved. We see the current employment tribunal fee system, which has been widely criticised by legal professionals, academics and so on, as constituting a real and true barrier to justice.

If employment tribunals are fully devolved, Scottish Ministers would have the capacity to establish in the process, in conjunction doubtless with the trade unions and ACAS, the possibility of scrapping the fees that currently apply in Scotland. Perhaps the Minister might agree that that would improve access to justice in Scotland.

Lord Keen of Elie: I am obliged for the scrutiny that your Lordships’ House has given Clause 37, in particular to the noble and learned Lord, Lord Wallace of Tankerness, for highlighting issues with respect to tribunal practice and procedure.