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comes from the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lord, Lord Stephen, would be a possible alternative. But something of this kind is in my view absolutely essential if we are setting out in statute a restriction on the power of the United Kingdom Parliament to legislate.

Lord Hope of Craighead: My Lords, the problem with the term “Sewel convention” itself seems to beg a question as to exactly what it covers. The word “normally” is not the only problem in that respect.

The Duke of Montrose (Con): My Lords, I should say that if we get to the stage of putting this to a vote, I would like to support the amendment of the noble and learned Lord, Lord Hope of Craighead. In Committee, I drew out the question about the progression from the wording set out in Sewel at that stage of the Bill and what it had become. It seems to me that the beauty of creating the legislation in statute rather than in a convention is that we know exactly what we have got. It may be that the Government are arguing that we never want to pin things down and that they should be free to do whatever they like at all times, but I think we in this House prefer to have things clearly stated so that people know where they are. Of course, my noble friend Lord Norton of Louth has also made this point —that you cannot have a convention and a statute—so the Government have to make a choice as to which road they will go down. At the moment there seems to be a lack of clarity on many levels, so to have an amendment which has been drafted by the Scottish Parliament and recommended by the noble and learned Lord, Lord Hope of Craighead, is not a bad beginning.

Lord Empey: My Lords, can the Advocate-General tell us whether the use of the word “normally” is to allow the Government sufficient flexibility in the event that a devolved Parliament actually breaks the rules of an international treaty obligation? The United Kingdom is signed up to a number of international treaties, and it is possible that the actions of a devolved legislature could break one of those conventions. Indeed, we are on the cusp of that at this very time over certain issues concerning rights in Northern Ireland, and it could happen on other occasions. Is it therefore the Government’s view that because they want that flexibility, they have chosen to use this language so that if, for instance, the Scottish Parliament does something which breaks our international obligations in terms of legislation, this Parliament would have the ability to correct it?

It is a bit unfortunate that the Constitution Committee, chaired by the noble Lord, Lord Lang, is currently looking at a range of issues which include whether there are any countrywide values or other rights that we believe any United Kingdom citizen should be entitled to. The noble Lord, Lord Lester, who is not in his place, has advocated something approaching this on a number of occasions. I therefore wonder whether the Minister considers that the provision as it stands allows for that or could allow for it, or whether that was the intention behind the language. I have to say that I do not agree with the Sewel convention. In my

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home circumstances, the practice was that from 1921, Parliament effectively ignored what Stormont did, and we all know where that led.

I agree that there is not much point in having devolution if you continuously intervene over the heads of the devolved legislature, but at the same time there is a rational argument for saying that you cannot allow things just to drift on without having regard to the wider issue and to our international obligations. Therefore, I wonder whether that is what is at the back of the Government’s mind. If so, it would be most helpful to have an explanation.

6 pm

Lord Kerr of Kinlochard (CB): My Lords, I will touch on a rather similar point to the one that the noble Lord, Lord Empey, just made. I was very surprised by the way the Minister reacted at the end of our discussion in Committee on this point, when the noble and learned Lord, Lord Hope, made a very convincing case and explained the status of the amendment he put forward, as he has done again today. We clearly have two duties: first, to put the Sewel convention, as it operates today, on a statutory basis; and secondly, not to make a defective statute. It seems to me absolutely clear that the inclusion of the vague word “normally” makes this statute defective and a cause of continued dispute. We cannot do that.

I looked at how the Minister reacted when this point was made in Committee. I wonder whether he was not saying something: like the noble Lord, Lord Empey, I wonder whether there is a reason why the Government wish to retain the possibility of acting in breach of the convention as it operates. I wonder whether, for example, he was thinking about the Defence of the Realm Act or the Emergency Powers Act, which almost certainly would go into areas in a national emergency or a state of war where the Scottish Government would normally have fully devolved power. This seems fanciful, but I find it very difficult to think of a logical explanation for the Government’s position that we must write “normally” into the law and thus guarantee dispute in courts of law.

If there are circumstances in which the Government envisage that they would want to act in breach of what has been the convention and what is about to become law, they need to spell out in the Bill what they are. They need to replace the word “normally” with a subsection that defines those circumstances. It seems very unlikely that this is their thinking, but if it is, I hope that the Minister will explain it to us. Otherwise, I can think of absolutely no reason for not supporting the amendment in the names of the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Norton of Louth.

Lord McCluskey: Would the noble Lord support this possible solution? There is quite some time between now and Third Reading. If the Minister, with the support of others—he would certainly have the support of the Liberal party—could approach his new friends in Edinburgh in the Scottish National Party, and the noble Lord, Lord McAvoy, and say, “This is a mess agreed by Smith. It’s been demonstrated that it can’t be done. Would you agree that we simply drop this

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clause?”, he might well find that they would be happy to let it be dropped and the Government could renew a statement that we will do what the Smith commission envisaged.

Lord Kerr of Kinlochard: I very much hope that the Government will give a serious, considered reply to the noble and learned Lord, Lord Hope. If it involved suggesting coming back at Third Reading with some variant of his wording, I would want to listen to that. But, it seems to me that we simply cannot do what the noble and learned Lord, Lord McCluskey, is asking for, which is to drop this altogether. It is an important point in the Smith report that the House of Commons has gone along with, and on which all the political parties agree. The idea of just dropping the clause is not possible, but we need to write one that is not defective.

Lord Davidson of Glen Clova (Lab): My Lords, normally when the loyal Opposition hear valid and powerful arguments from many noble Lords and noble and learned Lords, they listen acutely and seek to put their weight behind those observations, particularly when they are put into an articulate amendment. However, in this case we will not support these amendments.

I suspect that the question “Why?” might come from the lips of certain noble Lords. It is our judgment that the political imperative suggests this position: if any of these amendments are passed by this House, they will be overturned in another place. It will be immediately accepted that that would be wholly undesirable. I notice the unfortunate distortion of the normally calm features of the noble Lord, Lord Forsyth, but he will fully understand, as one of the United Kingdom’s most able politicians over many years, that political imperative can be of considerable importance.

Lord Forsyth of Drumlean: I was puzzled by the noble and learned Lord’s assertion that he would be unable to support this because throughout endless hours of consideration of this matter, we have been told repeatedly that the Opposition are here to ensure that the letter of the Smith commission is delivered. The amendment in the name of the noble and learned Lord, Lord Hope, would do precisely that. We have been correctly advised that the clause is defective and does not do that. So the Labour Party will actually prevent the implementation of the Smith commission proposals. I venture to suggest that that is an albatross that some people may hang around its neck.

Lord Davidson of Glen Clova: I appreciate that the ornithological reference might necessarily be unhelpful to the party that I represent at this particular moment in time. However, the wording of the Smith commission is not to be treated as if every single word has been precisely defined. One of the great traditions of the British approach to such matters is to retain a certain flexibility in the way one deals with issues as and when they arise. When they arise, one occasionally notices other constitutional observations.

Lord Cormack: I am extremely grateful to the genial noble and learned Lord, but is he really saying that if this House exercises its constitutional right and sends

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something back to the other place it is acting in some way ultra vires? Surely if the other place decides that it does not want to accept the advice of your Lordships’ House we can reflect on that. The noble and learned Lord knows my constitutional position there. But for this House not to use the very limited authority that it has and pass a clause that is totally unsatisfactory and, in the opinions of many noble and learned Lords, nonsensical—can he advise us on what he is doing?

Lord Davidson of Glen Clova: The noble Lord raises a matter that goes well beyond what I hoped we were going to be discussing. He is opening up the entire relationship between this House and the other place.

Noble Lords: Oh.

Lord Davidson of Glen Clova: Oh, yes, he is. I hear observations that I am mischaracterising him, but no doubt the noble Lord, Lord Cormack, will be able to look after himself in due course. If he is suggesting that I am proposing that the House of Lords should never do anything that would go against the other place, then that is an entirely incorrect assessment of what I am saying. What I am trying to get across is a recognition that we are dealing here with something that is very much sui generis. This is terrain in which we have not normally been operating. This is an area of legislation which goes well beyond the situation that underlies the observations of the noble Lord, Lord Cormack, about the relationship between the two Houses of Parliament.

Lord Wallace of Tankerness: The noble Lord is basically saying that, albeit various people, not least the noble Lord, Lord Norton of Louth, have said that Clause 2 does not actually deliver the Smith commission, the Labour Party is prepared to live with the situation whereby the Smith commission proposals are not delivered, for some political imperative. I am not quite sure what that political imperative is. If it is a question of time, ping-pong would not take weeks. It is still perfectly possible to get the Bill delivered by the Easter Recess. I am not quite sure what that political imperative is, particularly if it is not going to deliver what, up until now, we thought the Labour Party wanted to deliver.

Lord Davidson of Glen Clova: The noble and learned Lord wants to know whether I am correct in identifying a political imperative. These are matters of judgment and in judgment, one can be right and one can be wrong as matters go by. There is an assessment made in this judgment and when one makes a judgment and comes to a particular conclusion, if that conclusion is one that one wishes to live with and follow through, well, one does that. I think that that is something that the noble and learned Lord will appreciate, because he has spent many years in politics and has had to realise that these political judgments have to be made. These political judgments can sometimes be right and sometimes be wrong, but this is the judgment that we have made. It would be most unfortunate, on this of all areas, were this to involve tension, difficulty, a contest, friction

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between this House and the other place. On this point, therefore, we adhere to the position we have thus far asserted.

Let me make another point. Clause 2 states:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.

That is language that is, at least, redolent of what a convention might be. It is the type of language that has been seen in the past in legislation in Northern Ireland and elsewhere—it is not a complete innovation. It is language that can be understood, and understood by courts. However, the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, for example, states:

“But the Parliament of the United Kingdom may not pass any measure applying to Scotland that makes provision about a devolved matter without the consent of the Scottish Parliament”.

We have heard much in this House on the extent of this Parliament’s sovereignty. Might it not possibly be seen—I would be very interested to hear the views of the noble Lord, Lord Norton of Louth, on this—that this language, saying what the Parliament of the United Kingdom may and may not do, is itself an attempt to trench on the sovereignty of the UK Parliament? Therefore, if one is going to find tremendous support for such an amendment, one has to be conscious of what one is doing constitutionally, because this would appear to be another innovation.

The Opposition are not against innovation. Some innovations can be good, some innovations can be bad; people adopt positions here and there depending on their assessment of those various innovations. However, this innovation is one we are disinclined to immediately jump into and support.

6.15 pm

Lord Forsyth of Drumlean: I appreciate that we are on Report, but when the noble Lord describes this as an innovation which is undesirable, is it not one that was recommended by the Smith commission?

Lord Davidson of Glen Clova: I am slightly surprised that the noble Lord offers such support for this amendment. I will explain my surprise. I do not see this as an exact simulacrum of what Smith proposes. This is an attempt to change the sovereignty of this Parliament. I do not understand that the Smith commission was quite so ambitious in the way it wished to proceed. I hope that that answers that question.

Lord Thomas of Gresford: I am attempting to follow the noble Lord down the tortuous passes of his philosophical musings, but does he not realise that there is conflict and tension today between the Welsh Labour Government and the Conservative Welsh Office because the areas of legislative competence are frayed, or overlap, or whatever? We must have something that is certain and he is defending something that is clearly utterly uncertain and ripe for the Supreme Court.

Lord Davidson of Glen Clova: There is a view, of course, that the Supreme Court is developing a constitutional role and that that is a matter that might

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be an adornment to the developing UK constitution. The noble Lord, Lord Thomas, suggests that these are philosophical musings, but the philosophical musing comes entirely from the other side. I am looking at the political reality of how this can be dealt with in relation to Scotland. There may be many interesting and complicated issues in Wales, and I would be fascinated to hear more about these in due course, but at the moment I am trying to put forward our position on these amendments.

Considerations of political imperative, therefore, are very much to the fore and we will accordingly not support these amendments. I hope I have dealt with the various issues that have been raised, but I see the noble Lord, Lord Tebbit, shaking his head. If there is a particular point he wishes me to address, or there is any issue that troubles him, I would be happy to do so.

Lord Tebbit (Con): I am grateful to the noble and learned Lord. Will he just come to the point and meet the point that has been ably expressed by a number of noble and learned Lords? He is just waffling. Is he trying to talk it out until 11 pm?

Lord Davidson of Glen Clova: The suggestion that I am waffling is one that I do not find wholly offensive.

Lord Wallace of Tankerness: The noble and learned Lord asked whether he had dealt with all the issues. He has not dealt with the issue, raised by the noble and learned Lord, Lord McCluskey, and by my noble friend Lord Stephen, of the importance we attach to having some subsection in here which would make the matters non-justiciable. We would welcome the view on that of my predecessor as Advocate-General for Scotland.

Lord Davidson of Glen Clova: I shall finish answering the noble Lord, Lord Tebbit, before I come to the interesting point made by the noble and learned Lord, Lord Wallace. I thank him for the name check.

The noble Lord, Lord Tebbit, wanted to know what I was getting at, what my point was and why I was waffling, to use his word. I am trying to deal with various issues that seem to trouble many noble Lords and many noble and learned Lords. The point I am trying to make—the simple nub—which he will readily understand, is that we perceive, and our judgment is, that the political imperative suggests that these amendments be not passed in this House. It is as simple as that.

To deal with the point raised by the noble and learned Lord, Lord Wallace of Tankerness, about whether the matter may be looked at from the point of view of the purely legal analysis, in looking at this clause now—we have not always looked at it this way—we see that there is considerable virtue in having the support of the Minister’s statement on how this clause will be perceived by this House, and why this House is putting it forward in these terms. That statement by the Minister will, of course, feature were this matter to come before the courts, where it would be of some consequence in how the court would decide whether this language suggested that the issue was justiciable. I hope that offers a measure of response.

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Lord Wallace of Tankerness: My Lords, to pick up the noble and learned Lord on that point, I think he is suggesting that a Pepper v Hart statement by the present Advocate-General would put the matter beyond doubt if it came before the courts. But surely the point is that we do not want it to come to the courts at all because that is when uncertainty comes in. Very important matters, such as people’s investment decisions, may be involved and they will not know the outcome until the courts have decided the matter. Our measure, which has stood the test of time since the Parliament Act 1911, would mean that the issue would never come to the courts at all, because, if it does, the genie is out of the bottle.

Lord Davidson of Glen Clova: I feel that genies should not come out of their bottles; they should probably stay in their lamps. However, the point here is that, when one looks at this clause, no matter how one seeks to alter it, there is the potential—such are the fertile minds of our legal colleagues—to find one way or another in which any issue can be brought into court. My noble and learned friend the Advocate-General for Scotland, his predecessor and even his predecessor have frequently had to deal with issues by saying at no stage was this ever intended to go before a court, and yet we found that it did come before the courts, and in those areas the court had to make a decision whether it was a matter that was before the court or not. This is just the way our constitutional arrangements work. That has stood the test of time and it enables the finest minds of the Supreme Court to consider these types of issue. At this point, I will perhaps draw to a close, but if—

Lord Stephen: The noble and learned Lord has made many points but I think he would accept that there is very wide cross-party support for the amendments being submitted today on this matter. After the 18 minutes for which he has been on his feet, I think none of us is any the wiser as to what the political imperative to which he refers is.

Lord Davidson of Glen Clova: I consider that it has never been the role of the loyal Opposition to increase the wisdom of Members of this House but we often attempt to leave them better informed. If I have wearied noble Lords over these 18 minutes, I apologise, but I offer this one little candle of comfort—I will weary them no more.

Lord Forsyth of Drumlean: Before the noble and learned Lord sits down, could it be that the political imperative is that he has been told by the Chief Whip down at the other end of the building, “Under no circumstance accept any amendment, however sensible it be”?

Lord Davidson of Glen Clova: Sorry, who is the Chief Whip in the other place? I am afraid it is not a man or woman I have ever met, so if there is some suggestion that I have been “nobbled” and my arm pushed up my back by some person wholly unknown to me, I think I would have noticed. The suggestion that my noble friend Lord McAvoy would in any way try to persuade me of anything—

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Lord Wallace of Tankerness: Perhaps I can help the noble and learned Lord because his Whips’ Office told my party’s Whips’ Office that is exactly what happened. They have been told by the other end not to support any amendment, however sensible, which would lead to a situation that could result in ping-pong.

Lord Davidson of Glen Clova: As every Member of this House—every noble Lord, every noble Baroness—who has spent any time in the other place and has been involved in the political toings and froings will know, what is said between Whips of different parties is normally regarded as confidential. Therefore, while the noble and learned Lord, Lord Wallace, may have an observation that somebody has told him, that is simply a matter for his Whip, I guess. I will try to sit down now unless anyone—

Viscount Younger of Leckie (Con): My Lords, I believe that the House is ready to hear from the Minister.

Lord Keen of Elie: I can say that the Whip did not consult me on that proposition.

I am grateful for the detailed consideration that has been given to this clause and, indeed, for the time that has been given up by a number of noble Lords in meeting both me and my noble friend Lord Dunlop to discuss aspects of the clause.

I begin by considering the extent or scope of the provision with which we are dealing. It touches on amendments moved by the noble and learned Lords, Lord Hope, Lord McCluskey, Lord Wallace and Lord Mackay of Clashfern, and the noble Lords, Lord Norton and Lord Stephen.

Noble Lords: What about Lord Cormack?

Lord Keen of Elie: I will come to that in a moment because normally I would come to “normally” when I am addressing “normally”, and that is when I will address the noble Lord, Lord Cormack. I would not want him to feel out of this.

The Smith commission agreement stated:

“The Sewel Convention will be put on a statutory footing”.

That is precisely what Clause 2 achieves. Let us step back for a moment to the Sewel convention. What did Lord Sewel say? He said that,

“we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament”.—[

Official Report

, 21/7/98; col. 791.]

Of course, the word “normally” was important. I will come back to that because it is a word that respects the sovereignty of the United Kingdom Parliament. Without it, you might have had a provision that intruded very materially on the sovereignty of that Parliament. That was what was said at the time in 1998.

The noble Lord, Lord Norton, observes that that is not a convention in the conventional sense; and, of course, he is right because a convention is something that grows up and is invariably applied or employed. Where you have the word “normally”, you are saying that there can be a qualification or an exception, so,

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strictly speaking, in constitutional terms, the Sewel convention is not a convention. But, you know, by convention it became a convention. And that is where we are. Over a period of years, what was referred to as the Sewel convention was understood not only by the United Kingdom Parliament but also by the Scottish Government and by the Civil Service. They understood and applied the Sewel convention, albeit that in strict constitutional terms it was not a convention. They operated it successfully and without difficulty until now. Then the Smith commission decided that the Sewel convention should be put on a statutory footing. Of course, the technical difficulty is this: if you express a convention in statutory terms, it ceases to be a convention.

6.30 pm

In a sense, we do not have that problem here because, as the noble Lord, Lord Norton, pointed out, it was not a convention in the first place. But let us avoid those technicalities and potential difficulties. It was understood to be a convention and it was decided that it would be expressed in statutory terms and put on a statutory footing. Therefore, it would in a strict sense cease to be a convention. But what was understood to be the Sewel convention when the Smith commission was meeting and determining this matter was the convention that the United Kingdom Parliament would not normally legislate in respect of devolved matters. That was the beginning and end of what was understood by the convention.

Is there any difficulty about that? Not really. The noble Lord, Lord Stephen, referred to various working documents employed by the Civil Service, such as Devolution Guidance Note 10, which is not a document that was ever approved by any House of this Parliament but was developed by the Civil Service for the application and operation of what was understood by the Civil Service and everyone else to be the Sewel convention. Behind that stood a memorandum of understanding. The noble Lord, Lord Stephen, referred to a memorandum of understanding being entered into in 1999. The memorandum of understanding was entered into between the United Kingdom Government and the Scottish Ministers. It also included the Welsh Ministers and the Northern Ireland Executive Committee, as it then was. But it was not entered into just in 1999; it went through seven different iterations or editions. Indeed, the memorandum of understanding was last agreed to by these parties in October 2013.

What did the United Kingdom Government and the Scottish Ministers understand was meant by the Sewel convention? Paragraph 14 of the memorandum of understanding says:

“The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not”.

That is important, of course, because it restates the sovereignty of our Parliament. It goes on:

“It is ultimately for Parliament to decide what use to make of that power”.

Again, it restates the sovereignty of our Parliament. It continues:

“However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature”.

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That is what the parties understood in October 2013, as well as in 1999. Indeed, it goes on to say:

“The United Kingdom Parliament retains the absolute right to debate, enquire into or make representations about devolved matters. It is ultimately for Parliament to decide what use to make of that power, but the UK Government will encourage the UK Parliament to bear in mind the primary responsibility of devolved legislatures and administrations in these fields”,

and so it goes on.

There is no difficulty in understanding what the United Kingdom Government, the Scottish Ministers and everyone else understood was meant by the Sewel convention, not only in October 2013 but when the Smith commission report was issued in 2015. That was the scope of the convention that the Smith commission recommended should be put on a statutory footing—not Civil Service working notes, not DGN 10 and not further requirements.

Lord Stephen: Does the Minister accept that since 1999 the practice has been that if there is a proposal to alter the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers, the convention is that a Motion should go before the Scottish Parliament in relation to that matter? In other words, the convention on these separate issues has been that there would be a decision of the Scottish Parliament on that issue.

Lord Keen of Elie: I cannot accept that because of the language employed. It was not the convention that dictated that; it was a practice that grew up as a consequence of the convention having been entered into. It reflected, for example, working note DGN 10. That is why I say there was a clear understanding by the parties not only in 1999 but in October 2013 of what was meant strictly by the Sewel convention. I also commend to the noble Lord the heading to paragraph 22 of the Smith commission report, which was also agreed to by the parties to the Smith commission. It makes it abundantly clear what the parties understood was meant in this context by the Sewel convention.

I quite appreciate that over the years practice has developed and no doubt practice will continue to develop, which is one reason you do not want to freeze practice in statutory form. What you want to express in statutory form is the strict requirement of the Sewel convention and its scope. It is important to remember that by doing that we preserve not only the convention as it is understood and has been understood but the sovereignty of this Parliament. For this Parliament is sovereign and can legislate for devolved matters, just as the Scottish Parliament can legislate for devolved matters.

The matter that Lord Sewel was addressing when setting out the principle that this Parliament would not normally legislate with regard to devolved maters without the consent of the Scottish Parliament was this: to make it clear that, despite Parliament’s sovereignty, the devolved legislature would be left to get on with the business of legislating in devolved areas. No one wanted the prospect of legislative ping-pong between the two Parliaments. That is also set out—as I say, quite clearly—in the memorandum of understanding, as it has been revised on seven occasions and agreed to by the United Kingdom Government and the Scottish Ministers.

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The question of the words “not normally” was raised. The noble and learned Lord, Lord McCluskey, among others, pointed out that the word would be justiciable. Of course, all the words of a statute are justiciable in the sense that you can go to a court and ask the court what it believes they mean. But it is not the word that is not justiciable, it is the issue. The question of whether the United Kingdom Parliament can legislate in devolved areas is not justiciable. It is for the United Kingdom Parliament to decide whether on some occasion it will do what it normally, usually or generally does, or will not do so, for it is a sovereign and supreme Parliament. That underlines the importance of the words “not normally” and to remove them from this clause would be to impinge on the sovereignty of this Parliament in a most unprecedented and extraordinary manner.

Lord Forsyth of Drumlean: I am listening very carefully to my noble and learned friend and basically he is saying that the Sewel convention is working perfectly well; everybody understands what it is. We are hearing from very expert opinion that the clause as it stands is rubbish and is subject to judicial challenge, so why does he not just drop the clause and stick with what is working, which is the convention as it exists?

Lord Keen of Elie: I am obliged to my noble friend for his invitation. I refer to the recommendation of the Smith commission report, which was that it should be put on a statutory footing, and this Government are determined that it will be put on a statutory footing. I hope that answers my noble friend’s inquiry.

That brings me to my noble friend’s Amendment 11, which he spoke to but followed up with the comment, “You can ignore my amendment”. I would like to treat that as a precedent in the case of my noble friend but not on this occasion. If he has spoken to his amendment, I have to respond to it.

Lord Forsyth of Drumlean: That is a novelty.

Lord Keen of Elie: Given the noble Lord’s invitation to ignore it, it is more than a novelty; it is rather generous. Be that as it may, I come back for a moment to the question of justiciability. The noble and learned Lord, Lord McCluskey, and others of your Lordships have sought to ensure that the provisions of Clause 2 will not create a justiciable right. I understand and appreciate the reasoning behind that amendment, but our position remains that it is not necessary because Clause 2 cannot and does not create a justiciable right. I emphasise that it is not a question of whether the word “normally” is justiciable, as every word of a statute is in that sense capable of being interpreted by a court. It is the issue that is not justiciable. I return to a point that I mentioned briefly—

Lord Lester of Herne Hill (LD): I had not intended to interrupt until I heard the noble and learned Lord just now. Since the doctrine of parliamentary sovereignty is simply a rule of recognition by the Queen’s courts that Parliament should be sovereign, is it not also a matter for the Queen’s courts and not for Ministers or government, or even Parliament, as to what is or is not justiciable?

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Lord Keen of Elie: I am obliged to the noble Lord. I would suggest that it is a moot issue because there have been occasions where this Parliament has expressly stated that an issue will not be justiciable, but of course the courts themselves will then look at that exception to see whether it is enforceable and lawful. There is that further point, so it is a further layer placed upon the issue by this Parliament but it is not conclusive. I believe there have been occasions where the courts have looked at statutory provisions in which Parliament has purported to say, “This is not a matter for the courts”.

Lord McCluskey: Then why does the Minister not simply accept Amendment 12, which says that,

“the decision as to whether or not the circumstances are such as to allow the Parliament of the United Kingdom to legislate with regard to any devolved matter shall be a decision for that Parliament to take, and shall not be justiciable in any court of law”?

Lord Keen of Elie: I am obliged to the noble and learned Lord and I can express it only in these terms. It is the Government’s considered position that the clause implicitly determines that point in any event. It would therefore not be necessary to express it in the terms proposed in the amendment.

Lord Wallace of Tankerness: The Minister says that the Government think that it is implicit in the clause. What is the problem in making it explicit? It would be interesting to consider whether their view is that there is a problem in making it explicit, because if there is not it would be very much to their advantage to accept the amendment of the noble and learned Lord, Lord McCluskey.

Lord Keen of Elie: I note the observations of the noble and learned Lord, Lord Wallace, but I can observe only that it is not appropriate to layer legislation with unnecessary detail and that if the matter is to be regarded as implicit in the present clause, it would be inappropriate to add a further clause. I cannot elaborate upon the point at this stage.

The concluded position of the Government is that Clause 2 as drafted delivers what was required by the Smith commission agreement by placing the Sewel convention, as it is properly understood, on a statutory footing. It is in these circumstances that I invite your Lordships to withdraw or not move their amendments.

Lord Hope of Craighead: My Lords, I am extremely grateful to all those noble and learned and noble Lords who have supported my Amendment 7. I am also extremely grateful to the noble and learned Lords, Lord Mackay of Clashfern and Lord McCluskey, for the points they made in support of Amendment 12, which in a way hangs together with it, because they have identified a crucial issue before us.

With all due respect to the Minister, he cannot get away with simply declaring that the “issue” is not justiciable. He has chosen the word “issue” as meaning something different, but the same point arises. The noble Lord, Lord Lester of Herne Hill, identified the point precisely: there is a crucial difference between

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the position of Parliament legislating—and Ministers declaring what words mean when they legislate—and the position of the courts. The courts will assert their right to interpret legislation according to the meaning of the words as they judge them to be. As the noble and learned Lord, Lord McCluskey, has said, the courts cannot close their door to arguments. People will bring arguments before the court, and when an argument is before the court it has to decide on it. The Minister simply cannot get away with the idea that we can be assured that this issue will never be before the courts and require determination.

6.45 pm

That identifies a point of great difficulty before the House this evening. We are being invited to accept legislation which has uncertainty built into it, with all that that means. As the noble and learned Lord, Lord Mackay of Clashfern, said earlier, one of the great strengths of legislation passed in the Westminster Parliament is that it has never been doubted that the courts cannot question that legislation. Their duty is to give effect to it. But once one writes in a clause such as Clause 2, it opens the door to the kind of challenges which give rise to uncertainty and all the difficulties that an Executive face in giving effect to legislation.

Although the Opposition have not really expressed it in quite these terms, hanging over this whole debate is the question of timing. As most of us know, on 23 March the Holyrood Parliament goes into Recess before the Scottish elections and at some date before then, or maybe on 23 March, it will have to pass a legislative consent Motion to give effect to the Bill we are discussing. Time is slipping past rapidly—there is less than four weeks to go.

I can understand the concern of both Front Benches that legislation should not be held up by any risk of ping-pong between the two Houses. There is of course one way to solve this. It is for the Government, who have a majority in the other place, to accept an amendment or move a government amendment which seeks to resolve the problem we have been discussing. I can see that there are dangers in a Government being asked to support an amendment which has come through against their wishes in this House. They would no doubt seek to overturn it in the House of Commons. However, the responsibility ultimately rests entirely on the shoulders of Ministers to give effect to the points that have been made so carefully and fully by various noble and learned Lords in all parts of the House. It is their responsibility to avoid the risk of uncertainty which hangs over this clause.

I have thought very carefully on whether I should seek to divide the House and I have decided that it would be better to give the Government further time to consider this issue. I give notice that I will come back to it at Third Reading because it is so important. We really cannot allow it to slip by without further consideration. I stress that the responsibility is on Ministers’ shoulders; they control this issue. There is of course the question of whether the Scottish Parliament will accept a measure which does not give effect to paragraph 22 of the Smith commission agreement. It may judge that the clause does not meet the terms of the agreement.

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In a way, that is not the really crucial point: it is whether we can accept a measure which will have a cloud of uncertainty hanging over it for all sorts of constitutional reasons. It is surely the Government’s responsibility to solve that problem one way or the other. I am sure that many Members of this House would be willing to discuss this further with the Government to see whether it can be solved. I will not therefore press my amendment to a vote this evening— but on the basis that we have not left the argument, which is still there to be addressed. It is for the Ministers to face up to that and, I suggest, to come back to the House at Third Reading with an appropriate amendment to remove the uncertainty in the interests of everybody. For these reasons, I beg leave to withdraw the amendment, subject to the caveat which I have made as clear as I possibly can.

Amendment 7 withdrawn.

Amendments 8 to 12 not moved.

Amendment 13

Tabled by Lord Wallace of Tankerness

13: Clause 2, page 2, line 7, at end insert—

“(9) The application of subsection (8) shall not be questioned in any court of law.”

Lord Wallace of Tankerness: My Lords, with the same observation that the noble and learned Lord, Lord Hope of Craighead, made about reserving the right to come back to this issue at Third Reading, I will not move this amendment.

Amendment 13 not moved.

Amendment 14

Moved by The Earl of Dundee

14: After Clause 2, insert the following new Clause—

“Cooperation between the Scottish and United Kingdom institutions: reporting

(1) Within a year of the passing of this Act, and annually thereafter, Scottish Ministers and the Secretary of State must review the level of cooperation between the Scottish institutions and the United Kingdom institutions following devolution, and prepare a report.

(2) In the review under subsection (1), Scottish Ministers and the Secretary of State must consult such persons as they consider appropriate, taking into account—

(a) the level of transparency and sharing of information between the Scottish institutions and the United Kingdom institutions;

(b) the level of cooperation between the Scottish institutions and the United Kingdom institutions; and

(c) the sharing of examples of best practice between the Scottish institutions and the United Kingdom institutions.

(3) Scottish Ministers and the Secretary of State must lay a copy of the report prepared under subsection (1) before the Scottish Parliament and the United Kingdom Parliament.

(4) In this section, “Scottish institutions” means—

(a) the Scottish Government,

(b) the Scottish Parliament, and

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(c) Scottish authorities to which power is transferred under this Act.

(5) In this section “United Kingdom institutions” means—

(a) the Government of the United Kingdom,

(b) the Parliament of the United Kingdom, and

(c) United Kingdom authorities from which power is transferred under this Act.”

The Earl of Dundee (Con): My Lords, this amendment would enable annual reports after the enactment of the Bill. These would be produced by Scottish Ministers and the Secretary of State. The subject would cover three aspects: following devolution, the level of co-operation between Scottish and United Kingdom institutions; transparency and information sharing between them; and the sharing of best practice between them.

An agreed aim is to build up good practice to benefit Scotland as well as other parts of the United Kingdom. In this respect, while addressing a similar proposal during Committee stage of the Bill, we noted that both Governments have already paved the way in Scotland. The Scottish Government have done so by facilitating the seven-city Scottish Cities Alliance as an independent affiliation, yet one which, through collective focus and effort, can help each of those cities the better to serve its families and communities. The United Kingdom Government have done so by delivering what is called the city deal and thus, through disbursement and loan, invest directly into the economies and infrastructures of a number of Scottish regions and cities. Glasgow has been funded in this way, and the Chancellor of the Exchequer has announced that Aberdeen and Inverness are due to come next.

Therefore, we begin with heartening evidence that the Scottish and United Kingdom Governments together have started out in the right way. As indicated, their combined actions to advantage Scottish cities and regions already correspond to the reference of this amendment: co-operation, transparency and building up good practice to benefit citizens.

Equally, the amendment presents co-operation and transparency as essential precursors in the first place for engendering good practice. They are also necessary to an efficient process of devolution. If achieved, such in turn will have derived from constructive bilateral government work, covering many areas including the implementation of more devolved tax and welfare.

Both Parliaments and Governments must, of course, receive regular updates on funding plans and fiscal changes. On all matters at all times, we should seek improved transparency and public awareness arising from proper levels of co-operation between the two Parliaments and Governments.

In his very useful report, these procedures are strongly advocated by the noble Lord, Lord Smith, who also stresses the importance of transparency, of building good practice and, through devolution, of benefiting all regions and communities. The purpose of the amendment is to connect those exhortations to the Bill. I beg to move.

Viscount Younger of Leckie: My Lords, as we move on to this next amendment, I hope your Lordships will agree that it is appropriate, as we are on Report, just to

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remind the House that the


sets out that a speaker other than a mover, a Minister or a noble Lord in charge of the Bill can speak twice only if granted the leave of the House, to explain a material point of his own speech that may have been misunderstood or misquoted. If we are to make progress, I would be grateful if the House would adhere to the guidelines in the



Lord Foulkes of Cumnock (Lab): I thank the Minister for giving way. I am really glad that I was in when he said that, because I am quite shocked. My understanding of what the noble Lord, Lord Dunlop, said the other day is that, because of the truncated nature of the proceedings, which we agreed to, and because a lot of these things were not able to be dealt with in Committee, we would treat this as if it was in Committee, to allow proper debate and discussion. The noble Lord, Lord Dunlop, clearly gave us that assurance, and I am afraid that what the noble Viscount, Lord Younger, is suggesting goes completely against that. I hope everyone will pay no attention whatever to what the noble Viscount has said.

Viscount Younger of Leckie: My Lords, my clear understanding is that no undertaking was given whatever on that basis. We remain on Report and I suggest that the House adheres to the guidelines within the Companion.

Lord Elton (Con): Perhaps I could clarify the situation. As I understood it, when those remarks were made, we were discussing Parts 2 and 3 of the Bill. That is when any new regulations might apply; they do not apply this evening.

Lord Forsyth of Drumlean: Further to that point, perhaps the noble Viscount could confirm that that is the position. To be fair to my noble friend, he said that it was a matter for the usual channels, but we were led to believe that the usual channels would accede to this. It would be completely unacceptable if we did not have that flexibility for Parts 2 and 3, particularly as all the Statement today said was, “Haven’t we done a great job?”. It did not tell us what this was about: we are not getting that until tomorrow, which is Thursday. Although the House is sitting on Friday, there is not a great deal of time for people to absorb it.

Viscount Younger of Leckie: My noble friend Lord Dunlop did indeed refer to discussions that might be taking places among the usual channels, but my clear understanding is that no decision was made for Report today.

Lord Forsyth of Drumlean: I did actually ask my noble friend to give us an assurance that, as far as Monday is concerned, that will be the case.

Viscount Younger of Leckie: I cannot as yet give an assurance on that. The rules on Report remain in place for today.

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Lord Higgins (Con): My Lords, whether or not any undertaking has been given up to now, it is painfully obvious that we ought not to proceed with Report given that we have had no debate at all on the financial framework in Committee under Committee conditions. It would be quite wrong for us to go all the way through the Bill when we are not able to have adequate discussion. Indeed, the Statement we heard this afternoon said there would be adequate discussion. My noble friend need not reply to this now, but I suggest to him that we really ought to have, in the course of this evening’s debate, a clear statement from the Front Bench that the proceedings on the latter part of Bill will be such that we can debate it fully.

Lord Foulkes of Cumnock: This is duplicity by the Government, and it really needs to be sorted out. I have been sitting quietly saying almost nothing—

Lord Taylor of Holbeach (Con): Will the noble Lord give way? I had hoped to be able to discuss this in an orderly fashion, and I apologise if it has taken longer than the House would expect. I fully realise the pressure under which the House has been dealing with this Bill in general. Although we started the Bill an awfully long time ago—I think it was November when we had Second Reading—we have been in an expectant state for some days. Such is the situation that I recognise that noble Lords will want a little more time on Monday on those groups of amendments that deal with the fiscal framework. I understand that. I think it is the agreement of all in the usual channels that this would be a satisfactory way of dealing with it. It will be an informal agreement, with no resolution of the House, but I can announce it to those here today who I know are interested in this matter.

I thank my noble friend Lord Younger for holding the fort, but I happened to see the situation in which he was placed and I thought it would help matters if I made the position of the Government clear in this respect now. Many noble Lords involved in this debate are used to absorbing complex documents very quickly—that is why they are here—and I hope they will take the opportunity of the weekend to swot up, so that when we meet on Monday to discuss those aspects of the Bill, they will be in a position to add to our debate in a constructive way.

Lord Higgins: I do not think my noble friend was in the Chamber when this discussion began. The issue was not whether we would have more time next week, it was simply whether the rules which normally apply at Report—on speaking more than once, for example—should apply on the financial provisions, where we have had no discussion yet.

7 pm

Lord Taylor of Holbeach: I am sorry: did I not make that clear? Although there will be no formal resolution to this effect, on those groups of amendments to which the fiscal framework applies, we will adopt those rules which we normally have in Committee. If that is agreed across the House, I am quite happy with

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that. My noble friend must have misheard what I was saying. I may not have been in the Chamber, but I was listening to the debate.

Lord Foulkes of Cumnock: As the person who initially raised it, and as one of the usual troublemakers, I fully accept what the Chief Whip has said. That is what we all understood was to be the case. As long as the discussion on the fiscal framework and related matters can be, informally, treated as if it were Committee rather than Report, I am sure that that is the way forward.

The Earl of Kinnoull (CB): That is very good news.

I thank the noble Earl, Lord Dundee, for allowing me to add my name behind his on the amendment. I must thank both Ministers for a very generous slice of their time when we discussed the thinking behind the amendment in their offices a week or so ago. The amendment concerns intergovernmental relationships, and I remind the House what the noble Lord, Lord Smith, wrote in his foreword:

“Both Governments need to work together to create a more productive, robust, visible and transparent relationship”.

I was very encouraged to hear, when the noble Lord, Lord Dunlop, repeated the Statement, that the noble Lord, Lord Smith, had again talked about how important intergovernmental relationships were. The noble Lord, Lord Dunlop, talked about there being a basis for constructive engagement and how he was keen on building intergovernmental relationships.

The amendment concerns what I would call, in commercial terms, a feedback loop. When we are building a heavily devolved United Kingdom, it is very important that there is a structured, formal feedback loop between the Westminster Parliament and each of the devolved Administrations. I had the benefit of a visit to Canada in November, when, by sheer chance, I was able to sit down with a friend of mine who is a well-respected and very senior constitutional lawyer there. We talked about how the feedback loop exists and has been working in Canada. He confirmed that the loop went up and down; it consisted of a frank and honest interaction, and he regarded it as being open and constructive. That is not to say that he thought it was a total panacea—he identified one or two areas where there were weaknesses—but he said that through the creation of that feedback loop, an enormous number of poisonous things had been drawn from the lion’s paw in Canada. The amendment should be seen as something that begins to create a feedback loop. After all, we have a lot of devolution to come in the United Kingdom, and we will have to create a standardised approach to the feedback loop. The clear drafting of the amendment, which has developed since Committee, could be a valuable tool to kick it off.

We will have to have a feedback loop sometime. I feel that it is entirely consistent with the Smith commission agreement to include in the Bill something which starts a successful feedback loop. It will be interesting to hear from the Minister, if not now, when we actually have a Scotland Bill before us, when we can begin to put in place a formal structure that will help relationships between the two Governments.

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Finally, I observe that if we go without a feedback loop, eventually there will be some form of car crash. A great dispute will grow up which may not have arisen with the feedback loop, and we will then be trying to retrofit such arrangements.

The Earl of Lindsay (Con): My Lords, I support the amendment in the names of my noble friend the Earl of Dundee and the noble Earl, Lord Kinnoull. I remind the House that, quite apart from what the noble Lord, Lord Smith, said when reporting on his commission’s work, the Government, in their reply to the Smith commission, also accepted the call for greater co-operation and respect. They said:

“Effective inter-governmental working is essential to guarantee the best possible provision of services and representation for the people of the UK; a renewed commitment to build these relationships and explore better ways of working, as recommended by the Smith Commission Agreement, will require close collaboration between the UK Government and Devolved Administrations”.

The noble Lord, Lord Smith, and his commission, were absolutely right in endorsing that strong, unambiguous message.

It is perhaps a source of regret that in 2013, the recommendations of the Calman commission, which reported in 2009 in this very important area of intergovernmental co-operation, have to a large extent been either ignored or progressed in a way that has not been wholly effective. The noble and learned Lord, Lord Wallace of Tankerness, and I, as members of the Calman commission, were largely responsible for what became the largest section of the report, with 23 recommendations that dealt with intergovernmental co-operation, interparliamentary co-operation and inter-institutional co-operation. We on the Calman commission were very clear that this was a very important ingredient of achieving a stable, devolved constitution.

In coming to those 23 recommendations in 2009, we were acting on the evidence that we had heard from countries such as Canada, Australia, Germany and Spain—from memory—where the message was very clear. That was that the mortar between the bricks that delivered a stable and resilient devolved constitution came from relationships, not just primary legislation that determined which powers were devolved and which were reserved.

I encourage the Government, who have had both the Calman and the Smith commission recommendations, and now have this worthy amendment in the name of the noble Earls, Lord Dundee and Lord Kinnoull, to take seriously the message that it contains.

Lord Wallace of Tankerness: My Lords, I shall speak briefly to support the spirit of the amendment in the names of the noble Earls, Lord Dundee and Lord Kinnoull, and to endorse what the noble Earl, Lord Lindsay, said. The noble Earl referred to the Calman commission, on which he and I served and were charged specifically with looking at intergovernmental and interparliamentary co-operation. We found that there was much to be done. It came down to simple things such as passes for Members of the Scottish Parliament to access the Palace of Westminster and MPs to access the Scottish Parliament. There is much more that can be done.

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I make only two further points, because there is a lot in the amendment that should give us impetus. Legislation cannot do it on its own; a culture requires to be built up as well. First, I wanted to pick up on,

“the sharing of examples of best practice between the Scottish institutions and United Kingdom institutions”,

in subsection (2)(c) of the proposed new clause. I have always believed that it is one of the potential strengths of the devolution settlement that we have in the United Kingdom that we not only have a United Kingdom Parliament that deals with England and in some cases England and Wales on otherwise devolved matters but we have Welsh, Scottish and Northern Ireland legislation. There is much that we can do to learn from each other. There are things that might have been tried that did not work which there is no point in repeating elsewhere. For example, the Scottish Parliament took the lead on the ban on smoking in public places, which other devolved institutions then followed. But the sharing of best practice has probably been patchy at best.

Secondly, the Bill does not allow this proposal to go beyond the terms of the amendment, but clearly it is not just about interchange and exchange between the United Kingdom institutions and the Scottish institutions—it is something that we will want to do for the Welsh and Northern Ireland institutions as well. We can all learn from each other, but I hope that the House will endorse the spirit of the amendments that have been tabled.

Lord Norton of Louth: My Lords, I very much support the amendment introduced and moved so ably by my noble friend. It is over a dozen years ago now that the Constitution Committee of your Lordships’ House undertook an inquiry into devolution and inter-institutional relationships within the United Kingdom. We found exactly what the Calman commission found later—that what should be in place to encourage inter-institutional relationships was not there. Had the recommendations of the Constitution Committee report been implemented, we would be in a much stronger position now than we are.

There is a tremendous amount to support in this amendment, because it injects a useful discipline. It focuses the mind, because if consideration must be given to this each year it encourages reflection, as has been mentioned, addressing such things as best practice. That is wholly for the good; I see no real arguments against it, and I very much hope that my noble friend’s amendment will get a positive response from the Front Bench.

Lord Lang of Monkton: My Lords, I repeat briefly the support that I gave these proposals in Committee. The noble Earls, Lord Dundee and Lord Kinnoull, are to be congratulated on persevering on this issue. Like my noble friend Lord Norton of Louth, I, too, served on the Constitution Committee when, 14 years ago, we drew attention to the inadequacy of intergovernmental relations. They have got worse, not better, since then. We produced a report a year ago in the committee drawing attention to intergovernmental relations across the board, and we are still awaiting a response on it from the Government. I know that they are thinking about it, but they are thinking very slowly or, perhaps, very thoroughly.

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I hope that this amendment will trigger further thought from them. I do not know whether the proposed new clause covers the whole comprehensive gamut, but it certainly looks like a very good effort to me. I reassure my noble friends that, if they do not prosper with this clause in this Bill, we have another report coming out from the Constitution Committee shortly, and I dare say that it is possible that we will return to the matter then.

Lord McAvoy: My Lords, I, too, on behalf of the Labour Party, would like to record our support for the principles of the amendment moved by the noble Earl. This is a good, positive amendment and way ahead and a more positive discussion than some that we have had previously. We have to develop these links and prove that there is a better away ahead than just conflict, narking away at each other and coming to a conclusion. I am reasonably sure that the Government will resist the amendment, but I hope that its wording and, more importantly, the spirit behind it, form a template for further discussions and proposals coming from the UK and Scottish Governments.

7.15 pm

Lord Dunlop: I am grateful to all noble Lords who have spoken, and in particular to my noble friend Lord Dundee and the noble Earl, Lord Kinnoull. We had a very useful discussion, and we all agreed that it is an important principle that we improve intergovernmental relations. While it is the differences of opinion between Governments that attract the headlines, behind the headlines a lot of very good co-operation is going on between Ministers and the officials of the Governments of all the devolved Administrations. A very good example of that was referred to by my noble friend Lord Dundee, who highlighted the recent co-operation between the two Governments to deliver an Aberdeen region city deal. That is a very good example of good practice, and how the political differences of the Governments can be set aside and people can come together and work together to deliver for the people of Scotland.

As noble Lords are aware, are aware, intergovernmental working is an important element of the Smith commission agreement, and one that this Government take very seriously. As I set out on the first day in Committee, the Government are working collectively with all three devolved Administrations to review the intergovernmental arrangements that we have in place and ensure that they make for effective working relationships. As part of the quadrilateral review, we are jointly considering options for improving parliamentary scrutiny and wider transparency of intergovernmental relations. However, this must be considered in a way that ensures we reach a lasting agreement suitable not just for Scotland but for all four Administrations of the United Kingdom. I shall update the House as that work progresses. I understand that this House and, in particular, the House of Lords Constitution Committee is anxious to see the results of that thinking, and I assure my noble friend Lord Lang that we are thinking very thoroughly. My hope is that a review will conclude shortly. However, final agreement will not be reached

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until the recommendations can be considered by the heads of each Administration at the next JMC(P). A date for that has yet to be agreed.

The Government recognise the desire of noble Lords and the UK public to understand the relationships between the four Administrations, and we note the importance of ensuring that appropriate processes are in place to do so. None the less, it is sometimes necessary to allow for private space, in which open and honest policy discussions can take place. As part of the ongoing review, we are jointly considering options to ensure that the appropriate balance is struck to meet both those needs.

As noble Lords will appreciate, it would not be possible to report on every aspect of intergovernmental relations. However, regular reports are already made to Parliament, including under the Scotland Act 2012—in particular, on the implementation of the tax provisions. More generally, the Scotland Office and the office of the Advocate-General outline engagement, both routine and exceptional, that they have with the Scottish Government in their annual report, which is of course laid in Parliament. I note the ambition and sentiments expressed by noble Lords, and will take that very much into account when producing these reports. I undertake to the House tonight to look at how we can further improve what information we provide to Parliament.

On the third day in Committee, we had a very interesting debate about welfare, which is obviously a key aspect of the Smith agreement. We are breaking new ground in that area, where there will be concurrent powers. I was somewhat surprised that noble Lords were not aware of the joint ministerial group on welfare, but I take that very much to heart. It is our responsibility to make sure we look at how we can make the process of how these groups work more transparent.

I hope I have given some indication of the Government’s commitment to transparency and co-operation within intergovernmental relations. A statutory duty to report on or implement such measures is unnecessary and would be too prescriptive. For example, the memorandum of understanding has been amended on six occasions. There is a need for flexibility here. I accept the spirit behind this amendment, but I urge the noble Earl to withdraw it.

The Earl of Dundee: My Lords, I am very grateful to all those who have contributed to this debate. To summarise, there are three aspects which colleagues have picked up. First, there is the strong support and recommendations of commissions, not least the Smith commission and the Calman commission, to which my noble friend Lord Lindsay referred. It is almost a sine qua non that intergovernmental support should always be canvassed to make things work properly. Indeed, my noble friend Lord Norton pointed out that there is the extra benefit of the discipline that this inculcates so that there can be an efficient focus. Secondly, we have the precedent to which the noble Earl, Lord Kinnoull, referred when he pointed out that in Canada intergovernmental approaches and feedback are most productive. The noble and learned Lord, Lord Wallace of Tankerness, mentioned the third aspect, which is building up good practice, and

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that the culture of so doing can be part of the proceedings, quite obviously for the better. I am very grateful to the Minister for his undertaking, in the context of the way in which things are moving; in the light of that, I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

Clause 3: Elections

Amendment 15

Moved by Lord Keen of Elie

15: Clause 3, page 2, leave out lines 17 and 18 and insert—

“( ) Omit the words from “The franchise at local government elections” to the end of the Exceptions and insert—”

Lord Keen of Elie: My Lords, I shall first address Amendments 15 to 21. Under the Bill, and in line with the Smith commission agreement, the timing of Scottish parliamentary elections is devolved to the Scottish Parliament, subject to the provision in the Bill that Scottish parliamentary ordinary general elections may not be held on the same day as UK parliamentary general elections, European parliamentary general elections or local government elections in Scotland.

Following a request from the Presiding Officer of the Scottish Parliament, the UK Government agreed to bring forward an order under Section 30 of the Scotland Act, rather than use the Bill, to give the current Scottish Parliament the power to determine the length of the next Scottish Parliament following the poll in 2016. The order devolved to the Scottish Parliament power to legislate on the date of the first Scottish parliamentary ordinary general election after the 2016 poll. Following approval in the Westminster Parliament and the Scottish Parliament, the order was made by Her Majesty in Council on 8 October and came into force the following day. The Scottish Elections (Dates) Bill, currently before the Scottish Parliament, provides for the Scottish Parliament ordinary general election scheduled for 7 May 2020 to be moved to 6 May 2021.

We have tabled a number of technical amendments to make changes to a number of clauses in the Bill that are required as a result of the Section 30 order. Essentially, these amendments revoke the Section 30 order and remove provisions from the Scotland Act inserted by the order, which will be unnecessary as they overlap with provision made by the Bill. The area of legislative competence being devolved to the Scottish Parliament by the Bill is such that the Scottish Elections (Dates) Bill will still be within the legislative competence of the Scottish Parliament following the revocation of the Section 30 order. Additionally, we have tabled an amendment to Clause 5(2) to improve the drafting of this provision in order to ensure that it operates as intended.

We have also tabled an amendment that removes a reference in Clause 10 to a provision of the Scottish Parliament (Elections etc.) Order 2010 which is now unnecessary as this instrument has been revoked by the Scottish Parliament (Elections etc.) Order 2015 that was made by Scottish Ministers and which came into force in December 2015.

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In addition, I wish to give notice that the Government consider that drafting improvements are required to the reservation of the timing of ordinary local government elections in Scotland where the poll would otherwise be held on the same day as an ordinary general election for the Scottish Parliament, and to some provisions in Clause 5 relating to this reservation, to provide clarification and ensure that the drafting of these provisions operates as intended. As a result, the Government intend to table amendments to clarify and improve the drafting of these provisions at Third Reading.

Amendments 15 to 21 are technical amendments which will ensure that the clauses in the Bill relating to elections operate as intended.

I now to turn to Clause 11, which contains the supermajority requirements and acknowledge the input and assistance of the noble and learned Lord, Lord Hope of Craighead, on this matter. I thank him for his willingness to discuss this matter and to propose improvements to the provisions, which are reflected in government Amendments 23 to 26.

Clause 11 requires that the Scottish Parliament must pass certain legislation by a two-thirds majority. Government Amendments 23 to 26 to this clause will enable a Bill in the Scottish Parliament to pass to Royal Assent if the Presiding Officer of the Scottish Parliament decides that a simple majority is required, the Bill is passed with a simple majority but is referred to the Supreme Court, and the Supreme Court agrees that only a simple majority was required. The measure currently provides that in those circumstances, the Bill must be reconsidered by the Scottish Parliament before it can be passed for Royal Assent. We have taken account of the observations of the noble and learned Lord, Lord Hope, in order to make a little more sense —if I can put it that way—of the provisions of Clause 11 on the application of the supermajority. I beg to move.

Lord Hope of Craighead: My Lords, I think I should thank the noble and learned Lord the Advocate-General for Scotland for his kind words. The amendments improve the intelligibility of these provisions. It is important that the system work as smoothly as possible, so I am extremely grateful.

Lord Mackay of Clashfern: My Lords, I am glad that these amendments have been made. Of course, I understand that they will require approval by the House of Commons in due course.

Lord McFall of Alcluith: My Lords, we agree with the Government on this very sensible measure. We appreciate the minor and technical amendments and fully agree with them. We thank the Minister.

Lord Keen of Elie: I am obliged to noble and learned Lords for their contributions.

Amendment 15 agreed.

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Amendment 16

Moved by Lord Keen of Elie

16: Clause 3, page 3, leave out line 35 and insert—

“( ) In the Interpretation provision, omit the definitions of “Digital service” and “Ordinary local election” and insert—”

Amendment 16 agreed.

Clause 5: Timing of elections

Amendments 17 and 18

Moved by Lord Dunlop

17: Clause 5, page 5, line 27, leave out “from the words” and insert “for the words from”

18: Clause 5, page 6, line 4, at end insert—

“( ) Omit subsections (5A) to (5C).”

Amendments 17 and 18 agreed.

Clause 10: Minor and consequential amendments: elections etc

Amendments 19 to 21

Moved by Lord Dunlop

19: Clause 10, page 11, line 29, at end insert “and (2C) (date of elections to the Parliament).”

20: Clause 10, page 11, line 32, leave out subsection (7)

21: Clause 10, page 11, line 35, leave out “is revoked” and insert “and the Scotland Act 1998 (Modification of Schedules 4 and 5) Order 2015 (S.I. 2015/1764) are revoked.”

Amendments 19 to 21 agreed.

Clause 11: Super-majority requirement for certain legislation

Amendment 22 not moved.

Amendments 23 to 26

Moved by Lord Dunlop

23: Clause 11, page 12, line 33, after “decided” insert “on”

24: Clause 11, page 12, line 34, after “32A(2)(b)” insert “that any provision of the Bill relates to a protected subject-matter”

25: Clause 11, page 13, line 25, after “decides” insert “on”

26: Clause 11, page 13, line 26, after “32A(2)(b)” insert “that any provision of the Bill relates to a protected subject-matter”

Amendments 23 to 26 agreed.

Amendment 27 not moved.

Viscount Younger of Leckie (Con): My Lords, I beg to move that further consideration on Report be now adjourned. In doing so, I suggest that the House do now adjourn until 7.40 pm.

Lord Newby (LD): My Lords, it would be to the benefit of the House in the conduct and progress of business if we move to the next amendment on the Scotland Bill.

24 Feb 2016 : Column 322

Viscount Younger of Leckie: I believe that it is right that we should adjourn the House, with the agreement of the House, until 7.40 pm.

Lord McFall of Alcluith: My Lords, I think we should just keep going since we are in the swing.

Viscount Younger of Leckie: With the agreement of the House, let us move on to the next amendment.

7.30 pm

Amendment 28

Moved by Lord Wallace of Tankerness

28: Clause 34, page 35, line 29, at end insert—

“90C The Crown Estate—Island Authorities

(1) The scheme under section 90B of the Scotland Act 1998 shall make provision for the Scottish Ministers to transfer to the management of each of Shetland Islands Council, Orkney Islands Council and Comhairle nan Eilean Siar (“the island authorities”) on the islands transfer date all the existing Scottish functions of the Commissioners relating to those parts of the Scottish zone surrounding each of the island authorities.

(2) The exact extent of the parts of the Scottish zone to be transferred under subsection (1) will be agreed by the Treasury and Scottish Ministers in consultation with the island authorities and in accordance with the general principles contained within the United Nations Convention on the Law of the Sea as they applied for the delineation of boundaries between States.

(3) In this section, “the islands transfer date” means a date no later than one year after the transfer date referred to in section 90B of the Scotland Act 1998.”

Lord Wallace of Tankerness: My Lords, I am grateful to the House for allowing us to keep going. This amendment relates to the Crown Estate in relation to the islands authorities. It is an amendment that I moved in Committee, and I am very grateful for the support that it received from many parts of your Lordships’ House.

The Smith commission basically argued that the management of the Crown Estate should be devolved to, I think it said, the Scottish Parliament but, for reasons that the Government explained, that was not technically possible so it was devolved instead to Scottish Ministers. The commission also recommended that there should be onward devolution of the management of the Crown Estate to the three islands authorities of Orkney, Shetland and the Western Isles. The purpose of the amendment is to give some substance to that recommendation.

Since we debated this matter in Committee, the noble Lord, Lord Dunlop, has met representatives of the islands authorities, the chief executive and the leader of the Western Isles Council, who came on behalf of the other two islands councils; I am very grateful to him for giving us his time. A number of noble Lords also met the representatives while they were here. I was very grateful to the noble Lord, Lord McAvoy, who was willing to meet them and hear the very compelling case that they put.

As I said, the commission said that there should be devolution of the management of the Crown Estate to Scottish Ministers and then on to the islands authorities.

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What we are principally talking about here is the management of the marine estate, an estate that has substantial resources, not least in aquaculture but increasingly, as we look to the future, in the development of renewable energy. We are talking about a substantial area of activity.

Why would I seek to put this into statutory form? There is a suspicion about whether Scottish Ministers would fully deliver what the Smith commission actually proposed. It has been widely recognised that there is a considerable amount of centralisation in the present Scottish Administration. There is a concern that the Scottish Government have indicated that they intend to bring forward only a single consultation on how they might manage the Crown Estate, whereas those in the islands authorities believe, with the recommendation of the Smith commission, that by this stage they should be going further and having a separate consultation on how that particular recommendation would be taken forward. The fact that that has not happened makes them suspicious.

The islands forum, the Islands Area Ministerial Working Group, took place in Lerwick on Monday this week. It was chaired by the Minister for Transport and Islands in the Scottish Government, Derek Mackay, who was accompanied by Marco Biagi, the Minister for Local Government and Community Empowerment. The communiqué that was issued after the meeting said:

“There were also positive discussions on the potential for increasing local accountability for decisions on Crown Estate assets in the three council areas, ahead of a Scottish Bill on the future management framework for Crown Estate assets in Scotland after devolution. Scottish Ministers’ current priority is to secure the devolution of management and revenue of the Crown Estate so that Scotland and its communities can benefit from the Scottish assets. Ministers have already confirmed that island and coastal councils will receive the net income from Crown Estate marine assets out to 12 nautical miles after”,

devolution. That sounds fine so far as it goes, but this guaranteeing of net income—the question of course is what will constitute net income—falls short of management. Again, I think that is because the commitment from Scottish Ministers up until now has been to net income rather than to management, and again there is a concern that what would happen after devolution to the Scottish Ministers would still fall short of what the Smith commission recommended.

Those who met the representatives from the councils will know that the leader of the Western Isles Council, Angus Campbell, effectively and forcefully made the point that management really means the communities taking responsibility themselves for how these assets should be developed. There is a sense of community empowerment. He pointed out the problems that many of the islands communities are facing, particularly the Western Isles, with warnings of high levels of unemployment, particularly youth unemployment, or youth migration. The idea that they might be able to manage the assets of the Crown Estate within their communities gives them some opportunity to be able to do positive things for their communities and tackle issues such as youth migration. That is why it is important that there is the opportunity to manage the Crown Estate marine assets, not simply to receive net income from them.

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We have already seen the way in which Orkney Islands Council and Shetland Islands Council, under the Orkney County Council Act and the Zetland County Council Act, have been able over the years to manage the works licence regime regarding the development of aquaculture. They have been able to undertake that very successfully—in fact, sufficiently successfully that what they have been doing for many years in planning in the marine environment has now been extended to the rest of Scotland.

The noble Lord, Lord Gordon of Strathblane, made the point when we debated this in Committee that there is an understandable concern that we are second-guessing Scottish Ministers and doing double devolution without giving them a chance to take it forward. To that I say that there is a distinction between the responsibility that currently rests with Westminster and Westminster deciding that that should go to the islands, compared to a situation where a responsibility has already been devolved and this Parliament tries to suggest how an already devolved responsibility might be exercised. Indeed, I received representations that we might take the opportunity of the Bill to impose upon Scottish Ministers an obligation of, for example, proportionality and subsidiarity when they were dealing with local authorities. That would be wrong; it would lead to trying to put a responsibility on them for subjects already devolved. This is not a devolved subject, and therefore it is not inappropriate that we should devolve.

A better argument is to look at the scheme in the amendment that we propose. I am very grateful to the noble Earl, Lord Kinnoull, who has added his name to it. The amendment says that the scheme under Section 90B of the Scotland Act will make provision. Under proposed new subsection 90B(13), inserted by this Bill, the Treasury may make a scheme only with the agreement of Scottish Ministers. So in fact Scottish Ministers would be very much involved in making the scheme, which would lead to the onward devolution of the Crown Estate management to the islands community. Far from being cut out, they would actually be actively involved in the scheme; indeed, it would require their consent. Our amendment itself says that the actual transfer would be done by the Scottish Ministers to the islands.

In his foreword, the noble Lord, Lord Smith of Kelvin, talks about the,

“strong desire to see the principle of devolution extended further, with the transfer of powers from Holyrood to local communities”.

All sides of the House have previously noted that with approval. It is very easy to pay lip service to the aspiration, but this amendment seeks to give it real substance. I beg to move.

Lord MacKenzie of Culkein (Lab): My Lords, I support much, though not all, of what the noble and learned Lord, Lord Wallace of Tankerness, has said. My only slight worry is the issue of double devolution and whether the amendment is competent, but that is not to say that the debate is unimportant. We in the Highlands are sick of the centralisation that has been happening in Scotland—I certainly am.

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To allow the management of the Crown Estate to be taken over by the northern islands councils and the Western Isles Council would be a good step forward, because migration has always been a particular problem in the northern and Western Isles.

I recently visited the Isle of Lewis and the school I used to go to as a child when my father was principal lighthouse keeper in Lewis. It has closed, as have a number of other junior and secondary schools because of falling school populations. We need to bring some wealth back into that part of the world. There are always difficulties about the yard at Arnish, which was involved and perhaps still may be in manufacturing for wind farms. There has been a fall-away in fishing, which used to be the mainstay of that island, the potential, as we have heard, aquaculture and wind energy, and the difficulties with the interconnector to the Western Isles. Therefore we need something to bring some certainty to these islands. They are so much forgotten about in Edinburgh; historically, the highlands have always been the poor relation of Edinburgh, and many highlanders like me always tended to think that we did better out of Westminster than Edinburgh.

There is now a Government in Edinburgh who have the opportunity to devolve the management of the Crown Estate to the Northern and Western Isles. I am suspicious of the Scottish National Party’s plans here—I agree with the noble and learned Lord that there is no certainty whatever that anything other than the net proceeds will be given to these islands. I hope that this debate will at least help to put pressure on those who will have the ability in the future to further devolve, as the Smith commission said.

The Earl of Kinnoull: My Lords, I am very grateful to the noble and learned Lord, Lord Wallace of Tankerness, for allowing him to put my name beneath his on this very cleverly drafted and interesting amendment. As I mentioned in Committee, I have a particular interest in and a special love for those assets that make up the Crown Estate today. I am very worried about the Crown Estate, and feel that it needs to go into hands that will look after it. I am therefore extremely attracted by this amendment, because the local councils concerned will fulfil my test of looking after things.

I was most interested in what the noble and learned Lord, Lord Wallace, had to say about net income versus management. I thought I had to find one example of why it was important to send things down to the local level and I found one by talking to a householder outside Oban. He reflected that in the area outside Oban there are a number of fish farms, one of which had gone bust—of course, they need to have an arrangement with the Crown Estate—and no moneys were available to clear up the fish farm, which then created a pollution problem which affected a number of neighbouring fish farms. These businesses are quite small, but they employ significant percentages of people in the area around Oban. The solution was of course to get hold of the Crown Estate and ask it to take some simple decisions—essentially, to pay someone to clear up the mess. It took a very long time, because

24 Feb 2016 : Column 326

no one in London quite understood the urgency of the fact that pollution was killing off the fish. The householder told me that they were jolly glad that the Crown Estate would move to be more local. It was interesting that the same householder knew exactly what was taking place—I am using “double devolution” but I do not think it is that—and that in future, if a similar thing happened, it would be possible for someone to go directly to the appropriate person, because they would know the individual within the council who would look after it and could have the matter sorted out so that it would not cause the economic damage to the community which it did.

There is also of course the extraordinary thing we have been hearing today about the holy status of the Smith commission agreement document. However, in fact of course we have two holy documents, because it turns out that the Scotland Bill itself has a holy status. There is a conflict of holiness—

A noble Lord: Sacredness.

The Earl of Kinnoull: —or sacredness between these two documents, and it seems that it is incumbent on the House to try to find some way to resolve that. Given the very eloquent words of the noble and learned Lord, Lord Wallace of Tankerness, and my story of the householder from outside Oban, I am sure that the correct way for the House to consider the holiness is to go with the Smith commission agreement and to make the amendment that is being proposed here. I hope that other noble Lords feel the same way that I do.

7.45 pm

Lord McFall of Alcluith (Lab): My Lords, I endorse the comments of the noble and learned Lord, Lord Wallace, the noble Earl, Lord Kinnoull, and my noble friend Lord MacKenzie. I also pay tribute to the work of the noble and learned Lord, Lord Wallace of Tankerness, on that over the years, and to the local knowledge—the boyhood experience—of my noble friend Lord MacKenzie of Culkein on that.

I remember that at the time of the Scottish referendum there was an interview with a farmer from Shetland. The BBC interviewer asked him if he liked Westminster, to which the answer was, “No, I’ve not much time for Westminster”. He was then asked, “What about Edinburgh?”. He said, “Oh, we hate them. Our wrath is reserved for Edinburgh”. Therefore that makes a point on that quite eloquently, although in common language. It is no surprise that we support the principles behind these amendments and sincerely hope that eh Scottish Government are listening. In fact, in the 2014 Scottish Labour Devolution Commission we were very clear that:

“Devolution is not just about powers for the Scottish Parliament. It is about the distribution of powers within Scotland to bring them closer to people”.

If I have any quibble about what has happened in Scotland, it is that we have provided devolution to Edinburgh but we ain’t done very much to disseminate that devolution outwith Edinburgh. Therefore it is time that we did this, and this is quite a timely amendment on that.

24 Feb 2016 : Column 327

In the 1990s, when I was on the Opposition Front Bench for the Labour Party, one of my responsibilities was the Highlands and Islands. I developed a great affection for the isles and for the communities in that area. The point that was made by the noble and learned Lord, Lord Wallace, the noble Earl, Lord Kinnoull, and others, is that these communities are very fragile, and the support we need to give them is essential if we are to generate that community spirit.

In the Labour Party devolution commission that I mentioned we also made reference to local authorities, which,

“should have increased scope to influence economic development”.

When I was an MP along the Corridor I chaired a commission on the closure of the J&B bottling plant in Dumbarton, in my area. I did not want it to be exclusively local authority but wanted it to be public/private. I chaired the task force, and eventually it developed into what was called Lomondgate. Now, 15 years later, it has the BBC and Aggreko, which is a small generator company that was started in Dumbarton, but which is now a FTSE 100 company. We did that with local people and local involvement. I used to say to people in Scottish Enterprise in Glasgow that they did not understand my area even though it was 20 miles away. Therefore that need for that economic development and the need to have those powers in those hands is extremely important. Not only have I been a proponent of that but I have been a practitioner and have seen its success. Therefore with that spirit in mind I support these amendments so that we give the power to the communities and give the support to the Western Isles and others. If there is a lesson and a message here tonight, it is that the Scottish Government must deliver on their promises.

Finally, can the Minister clarify a point that was raised in Committee and which was also raised with him in writing, regarding the timescale of the transfer process of the Scottish Crown Estate to the Scottish Parliament? At the time, the Minister was unable to answer when or how long he anticipated the transfer scheme would take. Perhaps he has an update for the House today. At the very least, I hope he will be able to say when the detailed discussions which he referred to in the correspondence to us are likely to commence. With that in mind, I am delighted to support the principles of these amendments and I look forward to a positive response from the Minister.

The Parliamentary Under-Secretary of State, Scotland Office (Lord Dunlop) (Con): My Lords, I thank the noble and learned Lord, Lord Wallace, the noble Lords, Lord MacKenzie and Lord McFall, and the noble Earl, Lord Kinnoull, for their contributions. Let me begin by saying that I understand and sympathise with the intention of this amendment and with the island authorities. I also commend the noble and learned Lord, Lord Wallace, the noble Lord, Lord Stephen, the noble Earl, Lord Kinnoull, and my noble friend Lord Dundee, who have shown such resolute commitment to this important issue.

As the noble and learned Lord, Lord Wallace, has said already, I had the opportunity to meet the island authorities and other stakeholders. I found it an enlightening and informative experience to talk through

24 Feb 2016 : Column 328

this issue with them. I hope that I have further opportunities to meet them, and I certainly encourage others to do so. When he and I met the representatives of the Western Isles Council recently, it was clear how much appetite they had for the management responsibilities of the Crown Estate to be devolved with as little delay as possible. However, the Smith commission agreement was absolutely clear that:

“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 … Following this transfer, responsibility for the management of those assets will be further devolved to local authority areas”,

such as Orkney, Shetland and the Western Isles or other areas that seek such responsibilities. The Smith commission chose these words with good reason. I believe that the devolution of management responsibilities will be quicker, simpler and come with fewer practical difficulties if the UK Government devolve these responsibilities in a single transfer to Scottish Ministers. A consultation can then take place in Scotland to determine the best way to further devolve these assets. I stress that the UK Government’s view is that this should be a consultation about how, not whether, the management of those assets will be further devolved to the island councils.

I note that the Scottish Government are never shy of saying how they will hold the UK Government’s feet to the fire on how they live up to the commitments under the Smith agreement. I assure noble Lords that the UK Government will take every opportunity to press Scottish government Ministers to deliver on the commitments made by the SNP as part of the Smith process. I was glad to note, and to hear the noble and learned Lord, Lord Wallace, repeat today, that the island councils met the Scottish Government on Monday and that some progress, although not complete progress, was made in those talks.

However, the Government do not believe it would be in keeping with the principle or spirit of devolution for the UK Government to determine how the management of the Crown Estate in Scotland should be further devolved. But I take this opportunity to assure noble Lords that the UK Government take this issue seriously. The Exchequer Secretary to the Treasury, who has policy responsibility for the Crown Estate, will make a Written Ministerial Statement to Parliament six months after the transfer of Crown Estate assets. This statement will outline the progress that the Scottish Government have made on the onward devolution of these assets. This is a new commitment which the Government are prepared to make, having been persuaded by the arguments in this House and having met and listened to the group Our Islands Our Future and other passionate voices. I hope that this commitment gives noble Lords comfort. As I have said, we will continue to press the Scottish Government to deliver what was promised to the island communities and other communities in the Smith agreement. I have no reason to suspect that the Scottish Government will not deliver the onward devolution of these assets.

The noble Lord, Lord McFall, asked about timing. Conversations between officials are ongoing, and it is envisaged that Ministers of the UK and Scottish

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Governments will commence further detailed discussions after the Scottish Parliament elections about the precise timing.

In conclusion, I reiterate that although I respect and understand the intention of this amendment, the Government cannot support it. I ask the noble Lord to withdraw this amendment.

Lord Wallace of Tankerness: My Lords, I am grateful to all noble Lords who have taken part in this relatively short debate. I particularly thank the noble Lord, Lord MacKenzie of Culkein, who speaks with personal experience and knowledge about the challenges that face many of our islands communities and about the opportunities that those communities wish to have to be masters or mistresses of their own destiny.

The noble Earl, Lord Kinnoull, made an important point. Oban would certainly be outwith the immediate scope of the provision, but of course, as the Smith commission said, the measure could then go on to cover other coastal communities. He made the important point that in such circumstances, you have officials who know the individual concerned. Also, if you are a developer, you will then have to deal with only one regulatory body and will not have to get planning permission from an islands council and separate permission from the Crown Estate or the body that the Scottish Ministers set up after devolution.

I am grateful, too, for the very constructive and positive response from the noble Lord, Lord McFall. I think it was Lomondgate that he and I went to together during the referendum campaign. It was a very impressive set-up that he had had a considerable hand in developing and promoting.

I welcome the very understanding and sympathetic views of the Minister. He quoted the Smith commission quite properly, saying that following the transfer there would then be a transfer to the islands. That is precisely what our amendment says—that there would be a transfer and, following that, another transfer. However, the significant point is that he said that he would not hesitate to hold the Scottish Government’s feet to the fire, and that it was a question of how rather than whether. I fear that at the moment the Scottish Government have not taken that step. They are still talking about net revenues and not about management. Therefore, it might be helpful in holding the Scottish Government’s feet further to the fire if your Lordships were to agree to the amendment.

If the Minister was able to hold the Scottish Government’s feet to the fire and was able to tell us that they are now committed to the management and not just the transfer of assets, giving some indication of a timetable, no one would be happier than me to accept that positive outcome from the Minister’s efforts. In those circumstances, I think it would be helpful to test the opinion of the House.

7.57 pm

Division on Amendment 28

Contents 68; Not-Contents 189.

Amendment 28 disagreed.

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Division No.  1


Addington, L.

Bakewell of Hardington Mandeville, B.

Barker, B.

Beith, L.

Benjamin, B.

Bowles of Berkhamsted, B.

Bristol, Bp.

Bruce of Bennachie, L.

Burnett, L.

Campbell of Pittenweem, L.

Carlile of Berriew, L.

Cotter, L.

Doocey, B.

Empey, L.

Featherstone, B.

Foster of Bath, L.

Garden of Frognal, B.

German, L.

Goddard of Stockport, L.

Gordon of Strathblane, L.

Grender, B.

Hamwee, B.

Harris of Richmond, B.

Hope of Craighead, L.

Humphreys, B. [Teller]

Hussein-Ece, B.

Janke, B.

Jolly, B.

Kinnoull, E.

Kirkwood of Kirkhope, L.

Lee of Trafford, L.

Lester of Herne Hill, L.

Ludford, B.

McCluskey, L.

MacKenzie of Culkein, L.

McNally, L.

Maddock, B.

Manzoor, B.

Marks of Henley-on-Thames, L.

Masham of Ilton, B.

Meacher, B.

Miller of Chilthorne Domer, B.

Newby, L. [Teller]

Oates, L.

Paddick, L.

Palmer of Childs Hill, L.

Parminter, B.

Randerson, B.

Rennard, L.

Roberts of Llandudno, L.

Scott of Needham Market, B.

Sharp of Guildford, B.

Sheehan, B.

Shipley, L.

Shutt of Greetland, L.

Smith of Newnham, B.

Stair, E.

Stephen, L.

Stoneham of Droxford, L.

Suttie, B.

Thomas of Gresford, L.

Thomas of Winchester, B.

Thornhill, B.

Tope, L.

Tyler, L.

Tyler of Enfield, B.

Wallace of Tankerness, L.

Walmsley, B.


Ahmad of Wimbledon, L.

Alli, L.

Altmann, B.

Andrews, B.

Anelay of St Johns, B.

Arbuthnot of Edrom, L.

Armstrong of Hill Top, B.

Armstrong of Ilminster, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Balfe, L.

Bates, L.

Berridge, B.

Best, L.

Bew, L.

Bilimoria, L.

Black of Brentwood, L.

Blencathra, L.

Borwick, L.

Bourne of Aberystwyth, L.

Brabazon of Tara, L.

Brady, B.

Bridgeman, V.

Bridges of Headley, L.

Brougham and Vaux, L.

Browning, B.

Byford, B.

Campbell-Savours, L.

Carrington of Fulham, L.

Cathcart, E.

Chester, Bp.

Chisholm of Owlpen, B.

Cope of Berkeley, L.

Cormack, L.

Corston, B.

Courtown, E.

Crathorne, L.

Crisp, L.

Curry of Kirkharle, L.

De Mauley, L.

Dean of Thornton-le-Fylde, B.

Dear, L.

Deben, L.

Dixon-Smith, L.

Drake, B.

Dunlop, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Evans of Bowes Park, B.

Fairfax of Cameron, L.

Fall, B.

Faulks, L.

Feldman of Elstree, L.

Fellowes of West Stafford, L.

Fink, L.

Finkelstein, L.

Finn, B.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Freeman, L.

Freud, L.

Gardiner of Kimble, L. [Teller]

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

24 Feb 2016 : Column 331

Gilbert of Panteg, L.

Grantchester, L.

Greenway, L.

Hailsham, V.

Hamilton of Epsom, L.

Harding of Winscombe, B.

Harris of Peckham, L.

Hayward, L.

Healy of Primrose Hill, B.

Helic, B.

Henley, L.

Higgins, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Horam, L.

Howe, E.

Howe of Idlicote, B.

Howell of Guildford, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Hunt of Wirral, L.

Inglewood, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jones, L.

Judd, L.

Kakkar, L.

Keen of Elie, L.

Kennedy of Southwark, L.

King of Bridgwater, L.

Kirkhill, L.

Knight of Collingtree, B.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lansley, L.

Lawrence of Clarendon, B.

Lawson of Blaby, L.

Lea of Crondall, L.

Leigh of Hurley, L.

Levy, L.

Lexden, L.

Lingfield, L.

Lister of Burtersett, B.

Livingston of Parkhead, L.

Lupton, L.

Lyell, L.

McAvoy, L.

McColl of Dulwich, L.

McDonagh, B.

McFall of Alcluith, L.

MacGregor of Pulham Market, L.

McIntosh of Hudnall, B.

McIntosh of Pickering, B.

Mackay of Clashfern, L.

McKenzie of Luton, L.

Maginnis of Drumglass, L.

Marlesford, L.

Mawson, L.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moynihan, L.

Murphy of Torfaen, L.

Neville-Jones, B.

Newlove, B.

Norton of Louth, L.

O'Cathain, B.

Oppenheim-Barnes, B.

O'Shaughnessy, L.

Patel, L.

Patten, L.

Perry of Southwark, B.

Pidding, B.

Prior of Brampton, L.

Ramsay of Cartvale, B.

Risby, L.

Rock, B.

Rogan, L.

Rosser, L.

Sassoon, L.

Scott of Bybrook, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sheikh, L.

Sherbourne of Didsbury, L.

Shields, B.

Shinkwin, L.

Skelmersdale, L.

Smith of Hindhead, L.

Somerset, D.

Spicer, L.

Stedman-Scott, B.

Stowell of Beeston, B.

Strathclyde, L.

Stroud, B.

Suri, L.

Taylor of Holbeach, L. [Teller]

Trees, L.

Trenchard, V.

Trimble, L.

True, L.

Tugendhat, L.

Ullswater, V.

Walpole, L.

Warsi, B.

Wasserman, L.

Watkins of Tavistock, B.

Watson of Invergowrie, L.

Wheatcroft, B.

Wheeler, B.

Whitby, L.

Whitty, L.

Wilcox, B.

Willetts, L.

Williams of Trafford, B.

Young of Cookham, L.

Younger of Leckie, V.

Consideration on Report adjourned until not before 9.09 pm.

Immigration Act 2014 (Commencement No. 6) Order 2016

Motion to Annul

8.09 pm

Moved by Baroness Hamwee

That a Humble Address be presented to Her Majesty praying that the Immigration Act 2014 (Commencement No. 6) Order 2016, laid before the House on 11 January, be annulled (SI 2016/11).

24 Feb 2016 : Column 332

Relevant document: 22nd Report from the Secondary Legislation Scrutiny Committee

Baroness Hamwee (LD): My Lords, when the requirements to check immigration status were introduced into what became the last Immigration Act, they were known as the tenant’s right to rent. Initially our concerns were about issues such as the potential for racial discrimination and a dislike of using legislation to send a message. However, tonight I will talk also about the landlord’s right to rent in the sense of hurdles to letting, which we see in these regulations and in the Act with provisions that require landlords to be part of our border enforcement.

It is no secret that the requirements were included in the 2014 Act. Following negotiations between the coalition partners, the Liberal Democrats agreed to their inclusion in that legislation on the basis that there would be a pilot—

“a carefully phased approach to implementation”—[

Official Report

, 3/4/14; col. 1089.],

to quote the then Minister. He said that the rollout would allow proper evaluation to ensure that the scheme delivered its objectives without unintended consequences. I am sure that it was not intended to have such an impact on legal immigrants and British citizens. Whether one calls it a pilot, phasing, a rollout or a pathfinder, it is common sense to evaluate and assess experience and, where necessary, to adjust provisions.

However, the Prime Minister announced a nationwide rollout from the West Midlands pilot immediately on winning the 2015 election while the pilot was still in progress. Indeed, the Home Office’s evaluation was published only on the same day as the Pubic Bill Committee in the Commons took evidence on the current Immigration Bill, which extends the provisions from civil sanctions to criminal penalties. So, noble Lords may understand why we regard this as about using legislation to send a message.

My Motion would stop the rollout. Labour has a Motion to Regret calling for more consultation. I do not believe that it is more consultation that is needed—it is more evidence and more experience of a limited scheme. I cannot hide my disappointment that the Labour Front Bench will apparently not support us in our Motion, particularly given that the Labour Front Bench in the Commons was keen to support Tim Farron’s equivalent Motion to Annul. One aspect of scrutiny—this House’s job—is to consider the workability of the Government’s policies. To quote again from the Minister’s assurances in 2014: “Checks”—that is checks on prospective tenants—

“should be light touch in nature and workable, without creating additional burdens and costs”.—[

Official Report

, 10/3/14; col. 1651].

He also said that the scheme need not “introduce excessive bureaucracy”. I do not think that that would resonate with the letting agent whom I heard interviewed on Radio 4’s “You and Yours” programme. What he said was: “I have become an immigration officer”. Indeed, he has become an immigration officer who is liable to civil penalties and who, under the current Bill, will face criminal sanctions.

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Landlords have to make reasonable inquiries as to the immigration status of all the occupants before letting a property. Well, it is not actually that easy. I have been through the material on the Home Office website. The user guide is 39 pages long and there are 12 hyperlinks—there may be more; I may have miscounted —plus a code of practice plus a short guide. There are 25 types of document which may show immigration status, more if there has been a name change. These have to be examined and copied. And not all of them are invalid if the expiry date has lapsed.

A checking agent on the same programme said that there are 400 documents in the EU that would support the right to rent. Leaving aside unfamiliar documents, how easy is it to spot fakes? Last week, the court to which Ryanair successfully appealed against a fine for not spotting forged Greek passports—neither had the Spanish border force, as it happens—said that the way that regime was operated by the Home Office,

“offends fairly basic concepts of justice and indeed the rule of law”.

Landlords are not trained to spot forgeries. Indeed, the Residential Landlords Association found that more than 90% of landlords who were surveyed had not received information from the Government about rent checks, and 72% did not understand their obligations. All this from a Government who are keen on deregulation.

Yes, a Home Office inquiry line is available during office hours. But no messages can be left out of hours —I know because I phoned it out of hours. Most tenanted property is let by landlords with only one or a very few properties, and I dare say that many viewings are outside office hours in what is a very fast-moving market.

8.15 pm

This is a problem for tenants, too, and not just because landlords will be passing on the costs of this exercise; and it is a problem not only for those with a right to be here but for those who are here through less traditional routes. Last week I had an email from the mother of a student who is on a year abroad as part of her studies and who is trying to arrange accommodation for the next academic year. She has to show her passport. She and her friends have already lost one apartment because of the requirements. The passport and the person have to be in the same place, or virtually so via videolink. But if you are abroad and you are doing it by videolink you would have to have sent your passport—your original documents—in advance. Which of us would be confident about sending a passport into the wide blue yonder? I asked this lady how she knew about the Motion. She said: “It is the talk of the staff room”. This is not just an issue for the Westminster bubble; it is something that is understood to be affecting the whole of our society.

The letting agent to whom I have referred was concerned that vulnerable people are being turned away. These were real prospective tenants. He mentioned people who could not afford passports. I believe that 17% of UK nationals do not have a passport. He mentioned Travelling people wanting to rent for their elderly relatives and the difficulties they had in proving their status. He also mentioned people who are abroad at the relevant time.

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Of course I am aware of the consultative panel established to oversee the scheme, although I note that its minutes are not published. However, I have confidence that nobody could be more capable than the noble Lord, Lord Best, who co-chairs the panel, of making a silk purse out of a sow’s ear.

The Home Office’s evaluation of the first six months in the pilot area itself reports that,

“sample sizes are low which means the findings should be seen as indicative, rather than definitive”.

They are not only low—I would say extremely low—but not representative. Most tenants have not moved since the scheme started and so have no experience of it. The majority of the tenants in question were students, for whom the evidence of immigration status might be easier, although I have to say that the NUS tells me that this is not as straightforward as we had understood it. Only 62 landlords had taken on a new tenant, of whom only 26 had conducted checks. There is so little experience of the impact.

Two-thirds of the tenants described themselves as white, with only 23 as coming from an ethnic minority group. The potential for discrimination was, and is, a major concern. Indeed, actual discrimination has been reported. One also cannot ignore the preference for tenants who do not appear foreign or whose right to rent is easy to check. That was also shown in an independent evaluation for the Joint Council for the Welfare of Immigrants, by a YouGov poll for Shelter and in a survey by the property information website PIMS. But even if there is no blatant racism, in a sellers’ market—and renting is a sellers’ market—discrimination is the outcome of landlords taking the easiest decisions. Six of the local charities surveyed by the Home Office said their clients had become homeless as a result of the scheme. Seven reported people entitled to rent, but not with the right documentation, who were struggling to find accommodation. The stated aims of the scheme are to reduce the availability of accommodation for people illegally in the UK, to make it more difficult for them to establish a settled lifestyle through stable housing and to reinforce action against rogue landlords who target vulnerable tenants by putting them in substandard accommodation. The Government should tackle that problem anyway and they have the means to do it.

What evidence is there that these aims are met? A large proportion of undocumented migrants live with family or friends, sofa-surf or are homeless or destitute. They do not seek to access the private rented sector. We know that in the labour market immigrants who have every right to be here and every right to work often do not realise that they have those rights and so are more vulnerable to exploitation. I suspect the same might be true in the tenancy sector. Of the 109 irregular migrants who came to the attention of the Home Office during the pilot, only 26 were related to the scheme. The others were identified through normal enforcement activity.

The Secondary Legislation Scrutiny Committee of this House took the view that,

“the Home Office needs to do more to publicise the checks, in particular to the majority of small landlords”,


“clarify the consequential impact on local authorities”,

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which deal with homeless people who have been refused accommodation—we all know that local authorities face a great demand for housing. This is a scheme which in our view is unworkable, disproportionate, discriminatory, affects our reputation internationally among international students, and has a narrow focus on immigrants that badly affects the UK’s own citizens. This needs far longer testing and more and better evaluation and adjustment. I beg to move.

The Deputy Chairman of Committees (Baroness Andrews) (Lab): My Lords, if this Motion is agreed to, the Motion in the name of the noble Lord, Lord Rosser, may not be called by reason of pre-emption.

Earl Cathcart (Con): My Lords, in Committee on the Immigration Bill on 20 January, I said that I supported delaying the roll-out of the pilot scheme. I said:

“I thought that the whole point of a pilot scheme was to ensure that what was being put forward was actually working as intended. However, as mentioned by the noble Baroness, Lady Hamwee, the Joint Council for the Welfare of Immigrants found that two-thirds of landlords had not fully understood the code of practice on preventing illegal immigration or indeed the code of practice on avoiding discrimination, and that 50% of those who had been refused a tenancy felt discriminated against while 40% of tenants in the pilot area had not been asked for any identity documents. That is hardly a resounding success for the pilot scheme, yet the Government want to roll out this contentious scheme across the country next month. That cannot be the right answer”.—[Official Report, 20/1/16; cols.873-874.]

I still hold that view. I have great reservations about rolling out the scheme before the work has been properly done. The Residential Landlords Association recently surveyed almost 1,500 landlords across the country and showed that the vast majority of landlords simply do not have the information they need to undertake the checks properly. I am one of over 90% of landlords who said that they had not received any information from the Government about the right-to-rent checks by mail, email, from an advert or leaflet or from the internet, while 72% of landlords said that they did not understand their obligations under the policy. I only know about the right-to-rent checks because I am a Member of your Lordships’ House. I have received no other information.

Since Committee on the Bill on 20 January, the Minister has held a number of meetings with noble Lords, for which I thank him. My noble friend Lord Howard of Rising and I had one such meeting on not criminalising landlords who had done their best not to rent to illegals. We discussed whether immigration enforcement officers should be issued with clear guidance about when not to prosecute landlords who had done their best, so that only the deliberate flouters of the law could be pursued and prosecuted. I know that other such meetings with the Minister have also taken place on this subject. I do not know what the Minister has managed to achieve as a result of those meetings, so I will listen with great interest to what my noble friend says.

Lord Rosser (Lab): We will not support the Motion in the name of the noble Baroness, Lady Hamwee, if it is put to a vote. I believe that this is the fifth or sixth such Motion moved by the noble Baroness’s party in

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respect of a statutory instrument in this Session. There appears to be a difference of view between us on the role of this House—the unelected House—in relation to such Motions on statutory instruments and the very exceptional circumstances in which voting on such a Motion might be justified in this House. I may be wrong, but I believe that we voted on just two such Motions in relation to statutory instruments during the five-year period of the coalition Government.

The terms of our Motion express regret that the Immigration Act 2014 (Commencement No. 6) Order 2016 was laid following inadequate consultation, and asks the Government to undertake a further consultation before the terms of the order are implemented. This order extends the right-to-rent scheme to the whole of England, and the scheme restricts the access of illegal migrants to privately rented accommodation. The first phase of the scheme has been in operation in certain local authority areas in the West Midlands.

The Immigration Act 2014 was passed by the then coalition Government. Under it, landlords who failed to undertake the required checks whether prospective tenants had the necessary immigration status were liable to payment of a civil penalty. During the passage of that Bill, the then Government said in respect of the first phase of the scheme that they understood,

“the desire of noble Lords to ensure that the landlords scheme is ‘workable’ and that the provisions are tested and carefully evaluated”.

They said that it was their intention,

“to adopt a carefully phased approach to implementation and to ensure that we get the guidance and support services absolutely right before considering wider implementation beyond the first phase”.—[

Official Report,

3/4/14; col.1089.]

The Government also said that,

“one of the reasons why the rollout is important is that we need to check to see if there are any adverse implications in this policy”.—[

Official Report,

12/3/14; col.1800.]

The Secondary Legislation Scrutiny Committee commented in its recent report on this statutory instrument that:

“The Home Office … needs to clarify the consequential impact on local authorities”,

and whether the demand for local authority housing would increase as a result. The committee also said that,

“it appears to us that the Home Office needs to do more to publicise the checks, in particular to the majority of small landlords who do not belong to a professional association”.

In the light of just those two observations by the Secondary Legislation Scrutiny Committee, there must be doubts as to whether the commitment given by the Government during the passage of the Immigration Bill 2014 to ensure that the guidance and support services were absolutely right before considering wider implementation beyond the first phase has been met. Likewise, there must be doubts about whether the commitment given to check if there were any adverse implications of the policy has been met in the light of the committee’s comment that the Home Office needed to be clear about the consequential effects of this legislation on local authorities and whether the demand for local authority housing would increase as a result.

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8.30 pm

Further doubts about whether there has been adequate consultation or discussion on the outcome of the pilot or first phase of the scheme in the West Midlands have been created by the comment of the Prime Minister last May, before the Home Office’s official valuation had been completed, that now that his party had a majority, the Government would roll out the scheme nationwide. The Home Office evaluation was not published, as the noble Baroness, Lady Hamwee, has said, until five months later, in October last year. Publication then was also after the new 2015 Immigration Bill was laid before Parliament with the Government’s reference to it building on the national rollout of the landlord scheme established under the Immigration Act 2014.

The new Bill, of course, takes things further and provides for criminal sanctions, including imprisonment, against landlords and agents who are found to have rented to someone who does not have the right to rent. The reality is that, despite a statement by the current Minister for Immigration during the passage of the Immigration Act 2014 that a clear assessment would need to be made at the end of the first phase in the West Midlands to inform the subsequent rollout, and that no further decision would be made before then, the Prime Minister in particular and the Government in general have done precisely that, since they made their decisions months before the Home Office evaluation of the scheme in the West Midlands was published, let alone consulted upon or discussed. As the Government will be aware from the report of the Secondary Legislation Scrutiny Committee, both the Joint Council for the Welfare of Immigrants and the Immigration Law Practitioners Association have raised serious doubts about the right-to-rent policy and the evaluation that was undertaken of the scheme in the West Midlands.

The risk of discrimination under the right-to-rent scheme has been a major concern, and those concerns were expressed during the passage of the 2014 Act. The JCWI and ILPA have argued that the Home Office evaluation of the scheme in the West Midlands looked at discrimination only on the grounds of race based primarily on a mystery shopper exercise, but the Home Office report does refer to verbatim comments which suggest that there were a small number of instances of potentially discriminatory behaviour and that the Home Office Minister had stated that no “hard evidence” of discrimination had been found when the evaluation found clear evidence that it had taken place. The JCWI has listed evidence of discrimination found by the Home Office evaluation—and it is on a number of fronts—which includes evidence that British citizens without documentation have been adversely affected, and evidence reported by charities and voluntary organisations of increased homelessness as a result of the scheme, and difficulties finding accommodation among those with the right to rent but complicated documentation, and discrimination on the basis of nationality.

A YouGov poll conducted by Shelter in July last year found that one third of landlords were less likely to consider letting to people who do not hold a British passport, and 35% were less likely to consider someone whom they perceived to be a migrant. A survey

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of 300 landlords in September last year by a property information website asked who they would prefer to rent to when the new right-to-rent checks became compulsory in their area. Some 44% stated that they would rent to anyone with the required documents, but 47% stated that they would rent to British passport holders only. The JCWI says that the Home Office evaluation does not provide definitive evidence of the impact of the right-to-rent scheme on landlords, tenants and local communities, and that the Home Office report itself states that sample sizes are small and findings must be seen as indicative rather than definitive. The council also comments that the Home Office evaluation does not demonstrate that the right-to-rent scheme has or will achieve its stated aims of reducing the availability of accommodation for those residing illegally in the UK, discouraging those who stay illegally, encouraging those who are resident in the UK illegally to leave by making it more difficult to establish a settled lifestyle through stable housing, or reinforcing action against rogue landlords who target vulnerable tenants. The Home Office report itself states that just 26 referrals of irregular migrants were specifically related to the right-to-rent scheme.

I repeat the commitments the Government made during the passage of the Immigration Act 2014 that there would be a proper evaluation and clear assessment at the end of the first phase and that no further decisions would be taken before then, that it was essential to get as clear a level of detail as possible of the impact of the scheme in the West Midlands because the outcome would inform subsequent phases, that guidance and support services would have to be absolutely right before consideration could be given to wider implementation, and that the rollout was needed to see if there were any adverse implications of the policy. By no stretch of the imagination have those undertakings been delivered.

The Prime Minister’s statement last May that he would roll the scheme out nationwide before the Home Office evaluation had even been completed, let alone published, set out very clearly the Government’s attitude to the undertakings that had been given during the passage of the 2014 Act. Clearly, there is no consensus at all over either the thoroughness or the interpretation of the findings of the Home Office evaluation of the West Midlands scheme. The Government now have the opportunity to consult properly on their evaluation and take into account the views of others on the outcome of the scheme in the West Midlands, including what actions now need to be taken before any final conclusions are reached on whether to proceed to roll out the scheme nationwide, as well as before making it a criminal offence to rent property to someone without the required immigration status. I hope that that is an opportunity that the Government will now take.

Baroness Sheehan (LD): My Lords, during the passage of the Immigration Act 2014 through both your Lordships’ House and the other place, considerable disquiet was expressed about the right to rent clause.

The Liberal Democrats in the coalition Government were particularly unhappy about its ramifications. Eventually, a compromise was reached whereby a rigorous

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pilot scheme would take place in the West Midlands and only on its conclusion and satisfactory evaluation would a scheme be rolled out nationally. All previous speakers referred to this, but it is so important to reiterate and is the underlying reason behind my noble friend Lady Hamwee’s Motion.

Let me quote the Prime Minister’s speech on immigration in May 2015:

“The Liberal Democrats only wanted us to run a pilot … But now we’ve got a majority, we will roll it out nationwide”.

This statement contradicted assurances given to Parliament that any decision on a further rollout would take place only after a transparent and public evaluation that would allow Parliament sufficient time to debate, scrutinise and ultimately decide on any further stages of the scheme. This patently did not transpire. Thus, I am grateful to my noble friend Lady Hamwee for giving us the opportunity to put on record our thoughts on the inadequacy of the evaluation.

I start by examining the title of the proposal: “right to rent”. What does this mean, and what does it mean if the right to rent is not open to you? People who wish to rent a private home or a room in a house are looking for a roof over their heads. That is all. Let us put to one side for the moment the rights and wrongs of those without the necessary documentation being able to rent a home and think of them as people, rather than illegal immigrants. Are we saying that anybody—including British citizens, usually vulnerable ones—who fails to produce the paperwork set out by the Government will legitimately be put out on the streets, destitute, and that if you or I take pity on that individual, we, too, will suffer the consequences? That is morally repugnant. Will the Minister please tell me what will happen to people who cannot evidence their right to a roof over their heads?

Now let us think of them as illegal immigrants—as though they somehow cease to be human. Let us go along with it for a bit, because the Government’s argument is that these measures are acceptable because the prize at the end is worth it. I believe that the Government’s view is that creating a hostile environment that will make it difficult for illegal immigrants to have a settled life will, in time, be a deterrent, and that rogue landlords will be put out of business in the process. The Government may be right about that, but this then throws up a number of questions. Does the end then justify the means? More importantly, does the evaluation of the pilot scheme show us that there is evidence to support that the ends have indeed been met?

What are the means? They are, first, to deny a roof over the heads of those unable to produce the right papers; secondly, to get landlords to police it by forcing them to take on duties of immigration officers; and thirdly, to make sure that landlords do what is required of them by putting in place more and more draconian penalties if they get it wrong. However, I believe that the Government are playing with fire here, because creating that hostile environment to act as a deterrent risks enflaming community tensions, as people with foreign-sounding names and foreign accents without the necessary documentation, whether they are here legally or not, will be put to the back of the queue. It will be not only those with foreign characteristics but

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those vulnerable British people whose circumstances are such that they are unable immediately to produce the paperwork required. This includes the homeless, victims of domestic violence, victims of modern-day slavery and those caught in the mangles of the Home Office’s systems—something of which I have some knowledge, having handled immigration casework.

So far I have addressed only one half of the equation—the impact on tenants. What about the impact on landlords? Some 78% of rental properties belong to landlords who let only one or two properties. Buy-to-let landlords had not bargained on becoming an arm of the UK’s border agency. They, quite rightly in my opinion, do not feel qualified to pass judgment on the validity of documents arrayed before them. Indeed, the recent court case involving Ryanair, cited by my noble friend Lady Hamwee, illustrates perfectly the weakness of the Government’s policy of fining airlines for flying illegal immigrants into Britain. If airline staff are deemed ill equipped to scrutinise and identify forged documents, how on earth are ordinary citizens supposed to do so? The answer is: they will not. They will opt for the path of least resistance and let only to tenants who represent the least risk of them falling foul of the law.

Organisations such as Crisis, Shelter, St Mungo’s Broadway and the Joint Council for the Welfare of Immigrants have all documented their concerns on these issues eloquently. Indeed, the JCWI went to the trouble of commissioning its own evaluation of the West Midlands pilot. I wonder whether the Minister has had a look at it. It is rather a good piece of work and ought to be given serious consideration.

The Home Office’s own evaluation of this pilot is flawed on a number of counts. Noble Lords have already cited some examples, but I shall give a few as a flavour of the lack of rigour displayed. The report states that sample sizes are small—some online surveys were completed by as few as five respondents; only four voluntary and charity sector organisations and five housing associations were interviewed for research, and the majority of tenants had not moved properties since the start of the pilot and would not, therefore, have any experience of the scheme. The list goes on. Nor does the pilot definitively conclude that it has met the aims set out by the Government.

I shall finish by reading from the website of the Equality and Human Rights Commission:

“The importance of housing is recognised in the United Nations Covenant on Economic, Social and Cultural Rights, which includes ‘the right of everyone to an adequate standard of living for himself and his family, including adequate ... housing’. The United Kingdom is legally bound by this treaty. Protecting people’s human rights in housing is therefore important in its own right”.

I hope that the Government will take that statement on board and I am very sorry that Labour will not join us in voting down this order, especially since it did so in the other place.

8.45 pm

Lord Best (CB): My Lords, I declare my interest as joint chair of the right-to-rent private landlords consultative panel at the Home Office. I jointly chair this panel with the Minister for Immigration, James

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Brokenshire. We have been meeting to discuss the right-to-rent measure every month or two since September 2014, with sub-groups meeting between the main panel meetings.

I was very critical of the right-to-rent proposals in your Lordships’ House before they became part of the Immigration Act 2014. I tabled nine amendments, all relating to the practicalities of requiring landlords to check the immigration status of their tenants. The House received a number of reassurances from the then Minister, the noble Lord, Lord Taylor of Holbeach, for which I was grateful, including arrangements for a pilot scheme in the West Midlands.

The panel, which continues to meet, includes representatives of landlords, tenants, property agents, all the relevant local authorities, three government departments and the Equalities and Human Rights Commission. From this perspective, I hope, therefore, that I can provide some answers to the questions arising on this issue.

First, has the Home Office taken the whole process seriously? I can say definitively that this exercise has been taken very seriously by the Minister and the army of civil servants working on its implementation. I cannot claim technical knowledge of research methodologies, but I have been impressed by the Home Office team responsible for the evaluation of the West Midlands pilot, led by Andrew Zurawan. As far as I can tell, the different techniques deployed by the in-house and external researchers—surveys, focus groups, mystery shopping, comparisons with a control area where the right to rent was not in force—have all been conscientiously carried out. I fully recognise the limitations of any pilot evaluation process: it may take years, not months, for effects to work through; larger-scale surveys or surveys at different times of the year could produce fuller results; and so on. However, within the obvious constraints of this exercise, I think the team did a pretty good job.

Secondly, what has been the outcome of these efforts to date? It was never to be expected that the critics of this measure would reverse their opinions and accept the right to rent as a good idea. Nevertheless, I detected that the arrangements, even in the pilot, were not proving massively onerous for landlords or property agents. With the subsequent improvements to the approach—revision to the guidance, clarification and simplification of requirements for documents—the position for the rollout from 1 February certainly seems to be generally, if somewhat grudgingly, accepted. I am simply not convinced that the right to rent is causing huge anxieties for landlords; I have talked to landlords and agents who are far more concerned about tax changes and other regulatory measures affecting them.

No respectable landlord would wish to be letting to someone who is here illegally, not least since that tenant might be apprehended and removed and leave suddenly with unpaid rent, so already, of course, there are referencing procedures for those applying for a tenancy. Now that it is possible to view the pictures of the required documents for those who do not have a passport, their legal status should actually be easier to check.

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I raised the question at the panel with those representing managing and letting agents: would it be best to use a professional specialist company to handle this aspect of the vetting of your potential tenants? The response was that this would be a waste of money and quite unnecessary as the whole exercise was now straightforward enough. I wonder how many landlords do not seek proper references or carry out checks on the identity of people to whom they grant tenancies. I strongly suspect that the landlords who will be affected by this measure know very well the illegal status of the tenants and are taking advantage of them in extracting exorbitant rents for abysmal conditions. The great benefit of the Home Office’s interest in enforcing the right to rent in the West Midlands was shown to be in bolstering the efforts of local authorities to weed out some pretty unpleasant elements in the private rented sector. I make no secret of the fact that my own interest in this matter is based on the increased opportunities for prosecuting those who exploit people in overcrowded slum conditions.

Thirdly, what about the continuing anxieties that innocent landlords may unwittingly, through ignorance rather than malicious intent, still fail to identify an illegal migrant before allocating a tenancy to them, and, as a result, end up with a hefty fine? The panel has received a very clear message on the ongoing role of the Home Office in advising and supporting landlords and agents. Mostly people will go online and should now find the necessary information relatively easy to access. However, sometimes landlords or agents could encounter a lack of any documentation or have queries about the documents they do see. They will want a definitive decision from the Home Office itself. It is important to note that when Home Office officials are asked to check the identity of a potential tenant, they must respond within 48 hours. If the landlord or agent is not told that the individual has no right to rent within this period, the letting can go ahead. Based on experience from the pilot, the Home Office has geared up its staffing to meet its extended commitments. In addition to this checking service, everyday inquiries about the whole arrangement can be discussed with trained operators on an expert helpline.

Ministers have constantly reiterated the point that any prosecution requires a high standard of proof, demonstrating that a landlord actually knows, or has good reason to believe, that they are indeed letting to an illegal immigrant. Ministers have underlined the point that no one will be prosecuted for failing to identify a cleverly forged document or false passport, let alone be held liable if an illegal migrant moves in with a legitimate tenant unbeknown to the landlord. The Home Office will ensure that the CPS is fully aware of the policy intent. The object is to target the real rogues, the criminal landlords who knowingly and repeatedly flout the law. Nevertheless, if the Minister wishes to offer additional reassurances tonight to this effect, I am sure that would be appreciated.

Fourthly, is the Home Office investing enough in communications to ensure that landlords and tenants are alerted to the new requirement on them? The panel has received very regular reports on the many efforts being made to get the message across and I am confident

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that there can be no managing and letting agents who are still in the dark. Whether every one of the 1.8 million landlords in the UK is yet aware of the arrangement, I would not be so sure. However, I fear that some of these landlords are ignorant of a good many other responsibilities they should understand. This problem may be more to do with the way we organise rented housing in this country, with such huge numbers of “amateur landlords” who may have no expertise in property matters, rather than a problem with the Home Office. Of more concern is the issue of communicating with tenants who sub-let or owners who take in lodgers. These may well be harder to reach, despite the Home Office’s efforts, and it may take time for word to get around that checks are needed. In the early stages of the right to rent, tolerance will be needed if mistakes are made, and I note that the fine for a first offence, if it goes all the way to being prosecuted, is set at £80.

I fully accept that once the communications efforts have succeeded and most people are aware of the right- to-rent arrangements, there is the danger of discrimination against those who are in this country perfectly legitimately but might be thought to be illegal immigrants. Sadly, discrimination on grounds of race and ethnicity has not been stamped out in the private rented sector. It was discerned as much among landlords in the control area, where right to rent was not an issue, as in the pilot area. Whether the problem will get worse or whether the raising in the right-to-rent procedures of the profile of discrimination as an issue will counterbalance it, I cannot tell. Right to rent could get the blame for suspected discrimination when in reality the problem lies elsewhere.