Committee (2nd Day)

Scotland Bill – in the House of Lords at 11:45 am on 2nd February 2012.

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Relevant documents: 17th Report from the Delegated Powers Committee, 17th Report from the Constitution Committee.

Clause 11 : Air weapons

Amendment 18

Moved by Lord Browne of Ladyton

18: Clause 11, page 8, leave out lines 16 to 18

Photo of Lord Browne of Ladyton Lord Browne of Ladyton Labour 11:58 am, 2nd February 2012

My Lords, I speak Amendments 18 and 20 in my name and that of my noble and learned friend. Clause 11 devolves legislative competence to the Scottish Parliament in relation to the regulation of some of the powers on air weapons, as recommended by the Calman commission. The purpose of our amendment is, again, to probe the rationale behind the Government's selective implementation of the Calman commission recommendations. Amendment 18 seeks to remove the exception that the Government make to the devolution of powers to license air weapons in the case of those weapons designated as "specially dangerous" by the Secretary of State.

The Minister will forgive any deficiencies in the amendment itself. It seeks to improve a definition in an area of law that is fraught with confusion and in serious need of rationalisation. It is a continuing disappointment that the Government-and I think that the previous Government were in the same position about this-have not yet heeded the calls from the Home Affairs Select Committee, among others, on firearms control that call on the Government to rationalise the regulation of firearms in one single piece of legislation. The legislation is difficult to understand as it is presently enacted. None the less, I hope that the amendment will give the House the opportunity to debate the issue of the devolution of air weapons regulation in detail and to tease out from the Government the rationale behind the continued reservation of certain powers for the licensing of these weapons to the Secretary of State rather than devolving them.

Grouped with our amendments in Amendment 19 is in the name of the noble Earl, Lord Shrewsbury, who generously shared with me the argument and some of the points that he intends to make in support of it. I do not intend to steal his thunder, but in general terms they test and explore the practicalities of two separate regulatory regimes on this one island. His points are germane to the workability of what is proposed. I look forward to his contribution and, more eagerly, to the Minister's responses to his contribution and the questions that he will pose.

It will be known to many noble Lords that air weapons are an issue of particular importance to the people of Scotland. There have been too many cases in recent years when misuse has led to terrible consequences, such as the tragedy of two year-old Andrew Morton's death. The people of Scotland demand action from their politicians and we on this side of the House wholeheartedly support the devolution of powers to Scotland to regulate or, if the Scottish people choose to do so, to ban air weapons, but that is a matter for the Scottish Parliament. We are not blind to the practical consequences of such a change.

We are concerned, however, that the Bill as it stands does not go far enough in granting Scotland the powers that it needs if there is to be a change, and does not faithfully reflect the Calman commission's recommendations, despite noting from the Calman commission that,

"there are advantages in having common offences relating to the misuse of firearms across Great Britain and that there could be serious disadvantages in having different, unco-ordinated policies"-

the important word there is "unco-ordinated". The commission advised that,

"if there is appetite to deal with air weapons differently in Scotland than south of the border then the advantages of enabling the Scottish Parliament to do so outweigh the disadvantages",

and therefore recommended that the regulation of airguns should be devolved to the Scottish Parliament. The commission explicitly rejected the Scottish National Party's call for the devolution of firearms regulation in its totality, something that we on this side of the House do not support, on the basis that Calman found no evidence that Scotland had a particularly acute problem that demanded distinct legislation as opposed to any other part of Great Britain. However, the commission concluded that there was sufficient reason to discriminate between firearms because of a genuine appetite on the part of Scotland to deal differently with these particular air weapons, and this clear demand outweighed the possible disadvantages of a differentiated system.

It is important that the reason the commission did not recommend the devolution of legislative competence over all firearms was not the cross-border problems of an unco-ordinated policy but because of a lack of perceived necessity for the differentiated policy, and that meant that the balance fell in favour of co-ordination. When the commission found evidence for a real need for devolution, it found in favour of devolution with no exception, despite the fact that some air weapons are clearly as dangerous as other firearms.

However, the Government have decided to exempt those "specially dangerous" air weapons that are subject to special licensing or prohibition by the Secretary of State from devolution. This is clearly contrary to the commission's recommendations and, in my submission, will only add to the confusion and fragmentation of an already confused and fragmented area of the law-firearms regulation across the UK. Noble Lords will note that this amendment does not remove the exception to air weapons which are prohibited under Section 5 of the Firearms Act 1968, and Section 1(4) of the Firearms (Amendment) Act 1988. However, I would still like to probe the Government's logic here; to me it seems unclear.

The devolution of legislative competence over air weapons currently banned in the UK would, indeed, create a differentiated system of regulation across the UK, with all the associated cross-border problems. However, the Government must anticipate that the devolution of competence over most air weapons, which is what they propose, is still likely to produce such a result; the only difference being that the prohibition or the regulation of the other air weapons will exist in Scotland and not in the rest of the United Kingdom.

I regret that when this clause was debated in another place, the focus of the debate was largely on the Scottish nationalist obsession with the devolution of powers over all firearms and this issue, although presented to the other place, was not debated or properly answered. I hope that today we will have an opportunity to focus debate on the specific settlement proposed in the Bill and to ensure that the Scottish Parliament is granted the powers it needs properly to address the issue of air weapons in Scotland.

Photo of The Earl of Shrewsbury The Earl of Shrewsbury Conservative

My Lords, with the leave of the House, I wish to speak to my Amendment 19. I declare an interest as honorary president of the Gun Trade Association.

The format of this amendment is not without recent persuasive precedent. The Firearms (Electronic Communications) Order 2011 was made under the authority of Section 8 of the Electronic Communications Act 2000 and provides for the Secretary of State to direct forms of electronic communication that may be used for sending statutory notices under the various firearms Acts. Before giving any such direction, the Secretary of State is required to consult Scottish Ministers, the Associations of Chief Police Officers in Scotland and in England and Wales and "such other persons" as he "feels should be consulted"-a term which the Home Office suggests in its circular must include the main shooting organisations as well.

Clause 11 of the Bill contains no indication of the type of changes to the law concerning low-powered air guns that are envisaged by those who have sought to have controls devolved to the Scottish Government. However, Scottish Government press releases issued under the authority of the present Secretary for Justice have indicated that a form of licensing of air guns has been, and is, under active consideration. The amendment seeks to ensure that full and detailed consideration is given to all the ramifications of any form of legislation by requiring a consultation process that includes a cost-benefit analysis.

The imposition of restrictive legislation on air guns will have cross-border implications on those who travel with firearms to Scotland from other parts of the United Kingdom, from within Europe and from the wider world; or from Scotland to such places. Air guns are generally excluded from most aspects of firearms legislation and are outside the definition of "firearm" for the purposes of the European directive, Article 1(1). Only where the control of firearms has had a particularly troubled history in countries such as Ireland and Northern Ireland are air guns treated in the same way as firearms.

As we all know, the border between Scotland and England is entirely open. Different legislation on each side of an unpoliced border will create major problems in terms of movement of individuals and of air guns themselves. For the trade there will be serious issues in respect of mail order and face-to-face transfers in either direction. Direct sales, either by way of trade or between individuals, will be completely unpoliceable. It seems right that police on both sides of the border should be consulted about potential policing problems, and that the trade on both sides of the border should be consulted about the effects on its businesses.

The burden on the police of a licensing system for air guns will be enormous. Initially, some 500,000 air gun owners in Scotland may be affected but it seems probable that a proportion of owners will not take up the licensing scheme and will either dispose of their air guns or retain them without a licence. There is little chance of the greater proportion of non-compliance being discovered, since there is no record of those who now own air guns. Your Lordships may well be aware that a considerable percentage of air weapons carry no serial numbers, in particular the less expensive and therefore far more common weapons, and are therefore untraceable.

The initial take-up of licensing may be by 500,000 or fewer people. Existing holders of firearm and shotgun certificates total some 67,000 individuals. If a system akin to that for licensing firearms and shotguns were to be imposed on air guns, the burden on the police firearms licensing departments would increase eightfold, at a time when firearms licensing departments are cutting staff and slippage in turnaround of applications is becoming far worse.

According to a 2009 survey by ACPO in England and Wales, the grant of a firearm or shotgun certificate involves six or seven hours of police time. That may be overstated, but if a licence for an air gun involved only three hours of police time, more than 1.5 million additional hours would be required in the first year. Perhaps exemptions would be made for existing firearm and shotgun certificate holders, or perhaps further savings could be made by way of various exemptions; but even then the burden on the police would be more than 1 million man-hours. This has to be paid for.

It may be argued that the cost of all this could be recovered from the air gun owner, but Treasury guidelines demand that fees reflect only the actual cost of issuing the licence or certificate in question, and these recover only a small part of the cost to the firearms licensing department. They do not include enforcement measures or costs not directly linked to the grant of the individual licence.

Police in other parts of the United Kingdom would be involved in costs-probably large costs-related to the enforcement of any new laws in Scotland. An air gun sent by a dealer in England to a customer in Scotland might well involve a contravention of Scottish but not English law. However, inquiries would have to be made by English police about the actions of the English dealer.

Sporting shooting is an important factor in the economics of Scotland. According to VisitScotland, those living outside Scotland who visit Scotland for sporting shooting generate some £50 million per year for the Scottish economy. It is not unusual for the visitor to take an air gun with him for use against pests or in recreation. Such people will either continue to do so in ignorance of a new law, or they may be deterred from visiting at all if bureaucratic controls are in place. Major international target-shooting events are staged in various parts of the United Kingdom. Large numbers of competitors travel from Scotland to compete in events at world-famous venues such as Bisley, while the major Scottish meetings attract members from England and further afield. Shooters are likely to be inhibited from travelling to such events by bureaucratic controls, and many will simply stay away. Organisations representing field and target shooters on both sides of the border should be consulted.

Finally, while Clause 11 relates only to the potential for laws to license or otherwise restrict air guns in Scotland, such laws will impact on the rest of the United Kingdom, and it is right that proper consultation with those inside and outside Scotland should be required, so that those who may be affected at least have a statutory right to have their views heard.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat 12:15 pm, 2nd February 2012

My Lords, I thank the noble Lord, Lord Browne, and my noble friend Lord Shrewsbury for giving us an opportunity to look at this part of the Bill that specifically relates to devolution in respect of air weapons.

The amendment of the noble Lord, Lord Browne, seeks to remove the exception the Government have made in the Scotland Bill to the devolution of powers to license air weapons. Clause 11 provides that the Secretary of State retains the powers to make rules under Section 53 of the Firearms Act 1968 to specify weapons as "specially dangerous" and so require a firearms certificate, and also to make orders under Section 1(4) of the Firearms (Amendment) Act 1988 to prohibit specially dangerous weapons.

The contributions of the noble Lord and my noble friend indicated that this is a complex issue and I take the general point about the legislation being in different Acts. I therefore fully recognise why the noble Lord wishes to explore fully why the Government are not devolving the powers that are part of the exception in Clause 11. This was discussed in another place. In many respects, the issue turns on the way in which the Firearms Acts are drafted and the need to ensure that all specially dangerous weapons are dealt with on a consistent basis across the United Kingdom. Like the noble Lord, we should perhaps go back to the report of the Calman commission, which recommended that only air weapons should be devolved-although we know that there are those who would wish devolution to be extended to all firearms. I know that other members of the Calman commission are present. I do not remember us having any particular discussion of subcategories of air weapons that might be described as specially dangerous.

The Government believe that it would be confusing and potentially damaging to create a situation in which much of the body of firearms legislation in Scotland could differ substantially from that in England and Wales. Calman, too, said that there could be,

"serious disadvantages in having different, uncoordinated policies",

and therefore does not recommend devolving generally the subject of the Firearms Acts. That being so, we need to ensure that there is a common framework for the most lethal weapons across Great Britain, and this will include what are known as Section 1 firearms, such as hunting rifles, which require a firearms certificate issued by the local police.

In accepting the Calman recommendation that air weapons should be devolved, we looked to do that by adding an exception to Section B4 in Schedule 5 to the Scotland Act 1998, which currently reserves firearms by reference to the subject matter of the Firearms Acts 1968 to 1997. Those Acts cover regulation of the manufacture, possession, handling, purchase or acquisition, sale, distribution and transfer of firearms. They distinguish between different types of firearms in certain respects and make different provision for different types, including air weapons. Air weapons are defined in the current legislation in accordance with Section 1(3)(b) of the Firearms Act 1968. This refers to an air rifle, air gun or air pistol which has not been declared to be specially dangerous by rules made by the Secretary of State under Section 53 of the Act, and is not a prohibited weapon.

I claim no expertise or experience whatever in firearms, but I understand that currently, air pistols generating a muzzle energy in excess of six foot pounds and other air weapons generating a muzzle energy in excess of 12 foot pounds have been declared to be specially dangerous for these purposes. This means in practice that an air weapon which has been declared as specially dangerous becomes subject to the requirement to hold and abide by a firearms certificate. It therefore ceases in practical terms to be treated as an air weapon under Section 1(3)(b) of the Firearms Act 1968. Control of these types of weapon need to remain reserved, which is why the power to make rules under Section 53 of the 1968 Act will remain those of the Secretary of State.

I reassure noble Lords that we are not looking to restrict the way in which the Scottish Parliament exercises its legislative competence in respect of air weapons. I acknowledge that there is a drafting complexity in Clause 11, but in practice the Scottish Parliament will be able to regulate air weapons in the way in which it chooses.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My noble and learned friend simply stated that the regulation of those more powerful weapons needed to be reserved. Can he explain why?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

Because that takes them into a category for which licensing is required. We took the view, as did Calman, that there are categories of firearms which should not be devolved, those which might be described as more powerful, more dangerous, and that the particular air weapons which are the subject of our debate fall into that category and have more in common with firearms covered by other parts of the Firearms Acts than they do with other air weapons. It is because of their potential lethality. That is why there seemed to be a distinction between them and air weapons which are the subject of devolution.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I am genuinely trying to understand this. If the Scottish Parliament was to have power to regulate those "less dangerous" air weapons, how would it do that without having a licensing scheme? If my noble and learned friend's argument is that they are required to be part of a licensing scheme, I do not understand the logic of it. If the Government's view is that the Scottish Parliament ought to have this responsibility, is the Minister saying that it can only have responsibility for weapons if they are not very dangerous? It seems to be a little illogical to me.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

With respect, it is not illogical at all. A point I will raise when I respond to my noble friend Lord Shrewsbury is that this is devolution of a power. How the Scottish Parliament chooses to exercise that power, if at all, is a matter for the Scottish Parliament. I am trying to find the relevant part of the Calman commission report, which dealt not with the point about especially dangerous air weapons but with the more general point about firearms.

The commission indicated that the UK Government of the day had,

"argued that any ban on a firearm which it is currently legal to possess would need to be underpinned by a compensation scheme. It argues that where such firearms are currently unregulated"-

which is the specific case for air guns-

"it would be difficult to prevent them being legally and cheaply acquired in one jurisdiction and passed off for compensation in another which had introduced a ban. This is not an argument against devolution itself as much as it is a caution to a devolved administration making difficult policy decisions it believes to be in the best interests of its citizens. Whilst there would undoubtedly be practical considerations and potential difficulties in any divergence of approach to firearms control they do not preclude the development of robust mechanisms for managing cross-border problems, information sharing and good communications".

The Calman commission did not think that the case had been made for the devolution of firearms generally. The point is that especially dangerous air weapons are, in effect, firearms, licensed across Britain on the basis of what I think is widely recognised as a strict, world-leading regime. The Government do not wish to undermine that strict framework for the most dangerous weapons. Air guns that are the subject of devolution in this clause are not subject, at the moment, to what might be described as that strict licensing regime. That distinction is made, which is why the exception to the devolution of air weapons is being made in this clause.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I am grateful to my noble friend. Perhaps it might be better if I made a speech rather than asked questions, but I am struggling to understand the logic here. The Minister has read from the report by the Calman commission, which was chaired by Ken Calman, for whom I have considerable respect; he was my Chief Medical Officer for Scotland. I am not sure that he is actually an expert on firearms regulation. The Minister's quotation from the report seems to be saying that this would be very difficult to administer and very expensive. That is not an argument against giving Scotland the power, because it might not use it. However, not giving it the power creates the kind of uncertainty that my noble friend Lord Shrewsbury talked about.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

The noble Lord, Lord Browne, quoted other parts of the report, which said that, notwithstanding that, there would be cases where devolution would be appropriate. Indeed, the commission identified particularly Scottish circumstances as to why air weapons should be devolved. That was the commission's recommendation, which not only the present Government accept and are trying to implement through the Bill; the previous Government also agreed to the principle of devolving the power to regulate air weapons to the Scottish Parliament in the White Paper that they published in response to the Calman commission.

I am trying to make the point that some categories of air weapons are currently subject to a licensing regime because of their power. We still seek to maintain that reservation for that category, subject to the Secretary of State's powers under Section 53 of the Firearms Act.

Photo of Lord Browne of Ladyton Lord Browne of Ladyton Labour

I thank the noble and learned Lord for giving way. Indeed, I am grateful to the noble Lord, Lord Forsyth, who, in one simple question, encapsulated what it probably took me seven minutes to say. The purpose of this devolution is to respond to an obvious desire in Scotland for the greater regulation of air weapons generally. Regulating them more means licensing, at the very minimum. It is inconceivable that if the Scottish Parliament is given this power, it will not make all air weapons subject to a licensing regime. The distinction, therefore, between an air weapon of lesser capacity, force or power not being regulated and one of more power being regulated disappears. There will be two licensing regimes for air weapons when, in my submission, there should be one. If there is to be a distinction between, or a subdivision in, the licensing regimes for air weapons-one at the UK level and one at the Scottish level-will that not just add to the confusion rather than making matters simpler?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

I see the point that the noble Lord is making but I do not necessarily follow him down that route. For a start, this is the devolution of a power. It is a prescription as to how that power might or should be used and, even if it is licensing scheme, it may well be very different. We seem to be getting weapons that are not subject to the kind of strict licensing regime that we have at the moment. Therefore, I think that a distinction can be made, which we wish to keep, for weapons of greater power so that we can maintain consistency across the United Kingdom. As I have already quoted from Calman-it might even be the passage that the noble Lord read out-there seem to be advantages in maintaining that consistency.

Photo of The Earl of Shrewsbury The Earl of Shrewsbury Conservative

Although my noble friend says that this is enabling legislation which the Scottish Parliament may or may not put in place, does he not agree that the Scottish Parliament is already doing it when the Act has not yet been passed? It is already investigating my people from the Gun Trade Association who have been up there to give evidence to it.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My noble friend made a very powerful speech. However, we cannot make presumptions in that regard; nor can we presume what the shape of any licensing regime would be. The points that his colleagues in the gun trade are making may well help to determine the shape of that legislation.

Perhaps I may turn to my noble friend's amendment. He has set out very clearly what he sees as the consequences of imposing restrictions on air guns in Scotland, if indeed the Scottish Parliament chooses to go down that route. He has highlighted how any changes will have implications for the trade and for the police not just with regard to licences but with regard to the financial burden that he has outlined, and he has suggested that they are consulted by the Scottish Government before any new legislation is introduced.

Photo of The Duke of Montrose The Duke of Montrose Conservative

Perhaps my noble and learned friend could clarify one of the points introduced by the noble Lord, Lord Browne of Ladyton. The power in the Bill would presumably prevent the Scottish Parliament making any legislation on powerful weapons-it would be able to bring in regulation only on the non-powerful weapons-whereas what the noble Lord, Lord Browne, said might have been interpreted as meaning that it would try to regulate both.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

I am not sure that that is the case. However, I think my noble friend is right that the power in the Bill does not relate to more powerful weapons. Especially dangerous air weapons are already licensed. We are providing Scottish Ministers with a power to put in place a licensing regime, as the noble Lord suggested, for air weapons, which are not regulated under the current GB framework. A very simple distinction has been made between weapons that are currently regulated and those that are not, and the devolution of power relates to those that are currently regulated.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I am sorry; it is very bad to interrupt my noble and learned friend so often but I just do not understand this. I can understand the concept-the wish-to devolve to the Scottish Parliament the power to regulate firearms, and the wish to give to the Scottish Parliament the power to regulate air weapons. However, I do not understand the concept that the Scottish Parliament should be able to deal with only some air weapons and not others. That will create monumental confusion and we could end up with a system where the less dangerous weapons are subject to more control than the most dangerous weapons, which would be absolutely absurd. How would we avoid that?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

I think that my noble friend is seeing difficulties where they do not really exist. The clear view was taken by the Calman commission, by the previous Labour Administration and by the present Government that firearms as a whole should not be devolved. We are trying to explain-and I apologise to your Lordships if I am not doing so sufficiently well-that the weapons that under Clause 11 are not being devolved fall more closely into the category of firearms than unregulated air weapons, which are being devolved. Therefore, we are maintaining a consistency with regard to weapons that are currently the subject of a licensing regime vis-à-vis weapons that are not currently the subject of a strict licensing regime.

My noble friend says that that could lead to a stricter licensing regime. I have to concede that that is technically possible if the Scottish Parliament sees fit to do that, although I would have thought that some of the compelling arguments made by my noble friend Lord Shrewsbury may well mean that a bit of common sense will prevail when it shapes these powers. That is the essence of devolution. If a power relating to air weapons is devolved, as long as it is consistent within the confines of the Scotland Act it is a question of how that power is exercised.

Photo of Viscount Slim Viscount Slim Crossbench 12:30 pm, 2nd February 2012

My Lords, in a past life, I, with others, was able to experiment at some length with the possible advantage of an air gun for military use. On the market at the moment there are air guns that are lethal and really dangerous. There are air guns that some people say are less dangerous but, in the wrong hands, all air guns kill or maim to such an extent that you might perhaps wish you were dead. Has not the noble Earl, Lord Shrewsbury, put his finger on it? There seems to be a muddle. If you let the civil servants of both nations loose, you will have a much bigger muddle; you will have a catastrophe. Surely the noble Earl is right that before ruling on this, the proper government officials of both nations-I say nations now because everyone wants to be different and separate-should work out what is a dangerous weapon. The noble Earl is quite right that senior police officers from both countries and government officials should get together and then perhaps we shall make a sensible Bill.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, the noble Viscount makes a wider case about a general review of firearms at the UK level. The question of air weapons goes considerably further than the scope of this Bill, although I am sure the important points that he makes will be noted. This also covers the point made by the noble Lord. My noble friend pointed out that a licensing scheme would impose significant and costly burdens on firearms licensing departments and he expressed concern that shooters might be deterred from visiting Scotland by what might become overly bureaucratic controls. Taking these factors together, he proposes a statutory right for those affected by any changes to have their views heard.

As I have said in the context of the debate of what is and is not devolved, it is not for this Government to gainsay any of the reasons he has adduced in relation to the licensing of air weapons. Indeed, I recognise that sports shooting is a valuable contributor to the Scottish economy and that any change to firearms legislation is rarely straightforward.

That said, the nature of devolution is that a power is devolved and it is then up to the devolved body to determine how it wishes to exercise that power, as always, within the constraints of the law. This amendment, moved by my noble friend, would fetter the Scottish Government's and Scottish Parliament's discretion as to how they might go about the task of regulating air weapons. That was not the recommendation from the Calman commission.

However, while this is not a matter for the statute, I would say to my noble friend and to the Committee that one should fully expect the Scottish Government to consult appropriately before it proposes any new legislation on this matter in the same way that it would normally do with other Bills submitted to the Scottish Parliament. Indeed, it is worth reminding the Committee that the standing orders of the Scottish Parliament, at rule 9.3.3, require a policy memorandum to accompany any executive Bill setting out,

"the consultation, if any, which was undertaken on those objectives and the ways of meeting them or on the detail of the Bill and a summary of the outcome of that consultation".

Certainly the categories of consultation that have been suggested by my noble friend would appear to be eminently sensible. It is also important to point out that over a range of issues there is regular contact between the Scottish Government and the UK Government with regard to proposals that are coming forward for legislation in the Scottish Parliament. The UK Government will, of course, continue to work with the Scottish Government once the power is devolved to ensure that all who own air weapons and use them legitimately are clear on what the legal requirements would be north and south of the border and will indeed flag up to interested bodies that are not in Scotland that there may be some relevance here, not least ACPO, which may wish to make representations.

In addition, each Bill introduced into the Scottish Parliament must, in line with rule 9.3.2 of the standing orders, be accompanied by a financial memorandum which,

"shall set out the best estimates of the administrative, compliance and other costs to which the provisions of the Bill would give rise, best estimates of the timescales over which such costs would be expected to arise, and an indication of the margins of uncertainty in such estimates. The Financial Memorandum must distinguish separately such costs as would fall upon ... (a) the Scottish Administration; (b) local authorities; and (c) other bodies, individuals and businesses".

It certainly seems to me, from what my noble friend said, that, in terms of the financial costs, we can anticipate some quite comprehensive evidence being presented under these headings.

Ultimately, the Scottish Parliament will be the final arbiter but where there are issues to be resolved it would be hoped that the Scottish Government will wish to listen to the arguments. It would appear that already there is engagement with some of the interest groups and stakeholders in this area. My understanding is that they have already set up a consultative group to advise on proposals to introduce a system to license air weapons in Scotland and I assume it will continue to meet if Parliament agrees that this clause should be enacted.

I hope I have indicated that there is a distinction between what is being devolved and the categories of air guns which are not being devolved and that in fact there are adequate procedures in the standing orders of the Scottish Parliament, both for extensive consultation and for the financial burdens to be properly aired and presented to the Parliament. On that basis, I invite the noble Lord to withdraw the amendment.

Photo of The Earl of Caithness The Earl of Caithness Conservative

My Lords, perhaps my noble and learned friend can help me on the use of air weapons. Would it be possible for there to be two sets of regulations north and south of the border? In those regulations, would it be possible to prohibit the use of a weapon from England, say, in Scotland where it does not have to be licensed, whereas in England it has to be licensed? Would it be possible for the Scottish Government, within regulations, to make an order that that weapon could not be brought into Scotland and used?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, I seem to recall going over some details during the Calman commission. It must happen already when shooting parties come from other parts of the European Union. The trouble is that I cannot remember what answer the Calman commission got. I had better not mislead my noble friend and I shall write to him giving him chapter and verse.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I am still not persuaded by my noble and learned friend. Perhaps I am getting old and cynical. He served on the Calman commission and it is interesting that none of the other members of the Calman commission has felt able to contribute to this interesting debate and explain how they came to this conclusion.

One remembers the genesis of the Calman commission. It was an initiative led by the Labour Party, which the other unionist parties joined in with in order to prevent the case for independence and the nationalists being able to gain control of the Scottish Parliament. In that sense, it fell at the first fence. The idea was to look at what further powers beyond this Scotland Act could be devolved to Scotland. If I may address my noble and learned friend as a member of the Calman commission, one has the sense that he was scrambling around trying to think of things which could be devolved to the Scottish Parliament.

Something that worried me about my noble and learned friend's response to my noble friend Lord Shrewsbury was that he kept relying on what the Calman commission recommended. The commission made recommendations to the Government. It was the responsibility of the Government to consider them, decide what made sense and put forward their proposals. We are not talking here about the Calman commission's proposals; this is a government proposal. I respectfully suggest to my noble and learned friend that as a Minister in the Government he should be able to defend it.

I cannot for the life of me understand why it would be desirable to have another licensing system for air guns in parallel with the one that exists south of the border. I can see the argument. The noble Lord, Lord Browne, rightly pointed to some horrible and tragic cases that occurred in Scotland. However, there is nothing unique about Scotland that means that these cases could not also happen in England. The corollary is that the Government should look at the licensing of air weapons throughout the United Kingdom. If one is going to pass laws-as my noble friend Lord Shrewsbury pointed out-one ought to be conscious of how one is going to enforce them. If we get to a position where air weapons are either illegal in Scotland or are subject to a different regulatory regime from that which exists in England, how will that be enforced at the border? Will we have guys on the A74 checking whether the precise nature of a weapon meets the regulations that have been passed by the Scottish Parliament?

Faced with these challenges, my noble and learned friend resorted to the argument that, "We are only devolving the power. The noble Lord, Lord Forsyth, is putting forward arguments about what might occur if the Parliament chose to exercise that power". However, this Parliament should not create the legislative possibility of creating great confusion and difficulty in the administration of firearms legislation. The clause would be better if it gave the Scottish Parliament the power to deal with all weapons. If my noble and learned friend's argument is that some of these weapons are firearms, it becomes very difficult to see as one goes down this road how one would defend not giving the Scottish Parliament complete authority over all firearms, in which case we would have different regimes on different sides of the border-and that would make controlling firearms almost impossible. We seem to be creating a difficulty.

My noble and learned friend accused me of seeing problems where they did not exist. I do not see why the current regime would not be capable of dealing with the concern about air weapons, and I can see how this clause will create great confusion and difficulty. As my noble friend Lord Shrewsbury pointed out, air weapons do not have serial numbers. It is asking a lot of a policeman to look at an air weapon and decide which category it is in. This looks like the product of a political fix. There was great public concern about air weapons; it was a big issue. The Calman commission said, "We must do something about air weapons". It looked at the practicalities and found that they were very difficult, so we ended up with a camel designed by a committee.

I urge my noble and learned friend to look at this again. It is a very serious matter and I do not believe that the Bill addresses the practicalities involved. I support the noble Earl's very modest amendment, which does not seek to attack-as I have just done-the basis of the legislation in the clause.

Photo of Lord Browne of Ladyton Lord Browne of Ladyton Labour 12:45 pm, 2nd February 2012

My Lords, I am grateful to all noble Lords who took part in what developed into a debate that was much more interesting than my introduction. From my experience in your Lordships' House, that did not surprise me. I am grateful to the noble Lord, Lord Forsyth, who in one of his early interventions brought a degree of clarity that I had not managed to achieve to a point I had tried to make. I disagreed with some of his other interventions, but we will have an opportunity to debate the genesis and value of Calman at a later stage and in proper circumstances. However, in his most recent intervention he may well have pointed out where the problem lies in relation to a coherent approach to this. It is a matter of regret that we do not have a Home Office Minister at the Dispatch Box to respond to the debate.

The story that lies behind this is that repeated incidents in Scotland of the nature of the tragic death that I referred to generated a desire to regulate air weapons. The noble Viscount, Lord Slim, pointed out very wisely from his informed background that air weapons are all potentially lethal. There was a discussion between those who represented the Scots, including Members of Parliament and the Home Office, which moved toward the possibility of regulation on a UK level, but then stopped. The frustration generated by the Home Office's unwillingness to proceed exacerbated the discontent in Scotland. An indication that something would be done was snatched away. The key difference is between weapons that are regulated and those that are not, because those that are not have the potential to be lethal and have been proven to be lethal in a number of cases. This has caused the Scottish people to say, "We want our Parliament to have the power to do something about unregulated weapons and to regulate them". That is the set of circumstances to which Calman responded. Far from having to look around for powers to devolve, the significant cross-party lobby for the regulation of air weapons in Scotland was waiting for the opportunity of Calman or something similar to articulate its arguments.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I apologise if I gave the impression that the regulation of air weapons was not an issue. When I said that they were looking around for powers, I meant that they were looking around for powers to devolve. There certainly was an issue. Another example, which we will come to later, is giving the Scottish Parliament the power to decide speed limits. We have ended up with a Bill that gives the Scottish Parliament the power to regulate the speed of motor cars but not of HGV lorries. That is absurd. The distinction between different categories of air weapons is a similar example.

Photo of Lord Browne of Ladyton Lord Browne of Ladyton Labour

I am grateful to the noble Lord for his intervention. I understood the rhetorical point that he made. In relation to the issue that we are debating, there is a very strong desire in Scotland to have air weapons regulated. The Scottish people would have been happy if there had been a prospect of a system of regulation that would have been applied to the whole of the United Kingdom. In the absence of that prospect, the Scottish people say-and I agree with them-that if the power can be given to the Scottish Parliament, this should at least have the opportunity to regulate air weapons and to deal in some way with the obvious menace of their misuse. I am grateful to the noble Lord for allowing me to make that point in this context. Otherwise, what may appear to some to be a trivial piece of devolution, or to others to be something that is delivering unnecessary complications, will not be seen in its proper context.

I am grateful to the noble and learned Lord for the care he took in responding to my probing amendment on these matters. Characteristically, he engaged with the issue and articulated what I thought was the Government's argument for this exception to the devolution of responsibility for all air weapons. He will appreciate that I need to study his response, because I am not familiar with this area of law and I know how complicated it is. I incline to the view that if the distinction is caused by the existing licensing regime for some weapons-when I anticipate that there will be a licensing regime for all weapons-I may not be satisfied and may have to return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Amendments 19 and 20 not moved.

Clause 11 agreed.

Clause 12 : Insolvency

Debate on whether Clause 12 should stand part of the Bill.

Photo of Lord Browne of Ladyton Lord Browne of Ladyton Labour

My Lords, I approach the Dispatch Box to probe again the distinctions between what Calman recommended and what the Government have chosen to do. On this occasion, the Government have gone beyond the Calman recommendations.

Clause 12 has the backing of respected bodies, such as the Law Society of Scotland and the Institute of Chartered Accountants of Scotland. During the many evidence sessions throughout the Calman process, it became clear that the insolvency profession in Scotland sought the harmonisation of insolvency law on both sides of the border. However, Clause 12 goes beyond the original Calman recommendations. Your Lordships will recall that Calman recommended that the UK Insolvency Service be responsible for laying down the rules to be applied by insolvency practitioners on both sides of the border.

Calman went on to recommend that this could be achieved by UK legislation to which the Scottish Parliament would consent by a legislative consent Motion under the Sewel convention-I think those are the exact words of the recommendation. I understand that technically-a word I do not like to use-this is exactly what the Government have done in the sense that this Bill is UK legislation that has to be consented to by a legislative consent Motion by the Scottish Parliament. However, that appears to be a pedantic argument, and I do not expect that the noble and learned Lord will resort to it.

The clause does not appear to be in keeping with the spirit of the original Calman recommendations. Does the Minister believe that this is the correct implementation of Calman, or does he agree that it goes beyond Calman? It goes beyond the reservation of the power for the Insolvency Service to lay down the rules to be applied by insolvency practitioners on both sides of the border and reserves the whole body of law on corporate insolvency. If the Minister agrees that this goes beyond the Calman recommendation, will he outline the reasons for so doing?

The report of the Scotland Bill Committee of the Scottish Parliament, which was overwhelmingly approved by the earlier legislative consent Motion of the Scottish Parliament-as I have said before, it was supported by Alex Salmond-approved Clause 12, subject to provisions being drafted that will secure capacity for devolved legislation to effect the winding-up of registered social landlords. Does the Minister believe that this condition has been satisfactorily met? If so, can he explain why that is the case; and, if not, can he justify to this House why he has decided to pursue an alternative path to that sought by the Scotland Bill Committee?

During the debate on this clause in the other place, the Scottish nationalists asserted that there were concerns about the process of amending existing provisions on winding up registered social landlords. One concern is that future amendments, they say, would be easier to come by if this policy area were devolved rather than reserved. As is often the case with Scottish nationalists, this was asserted as though it were fact, and, as is also often the case with them, the assertion was not backed up by any evidence to suggest that that would be the case. No examples were given to support this theory, for that is all it is. It appears simply to be a continuation of their argument that everything would be better if it were devolved to the Scottish Parliament. The Minister in the other place, the Parliamentary Under-Secretary of State for Scotland, argued that this is not a cause for real concern, and I support that position.

However, the Minister went on to say that there was a problem and that there were ongoing discussions between the Insolvency Service and the Scottish Federation of Housing Associations to discuss the latter's specific concerns about this clause. Perhaps the Minister will update the House on the progress, or better still the outcome, of those discussions to satisfy us that the issue has been resolved. I am certainly not the only Member of this House to have received a briefing note from the Scottish Federation of Housing Associations that articulated continuing concern about the impact of this clause. I would not like to think that this is a sign that discussions were not successful, but if they were not successful, the Minister should explain to the Committee what is going on.

There is an identified issue here about circumstances that may arise in the winding-up or potential insolvency of a particular vehicle for delivering important housing in Scotland or a housing association. It is recognised that this needs to be resolved by discussion or perhaps by a change in regulation. Before we agree to this clause standing part of the Bill as drafted, your Lordships' House is entitled to know whether that issue has been addressed and satisfactorily resolved, or at least to have the confidence that a resolution is on its way.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

I thank the noble Lord, Lord Browne, for giving us an opportunity to look at this clause. Schedule 2 is also relevant to insolvency. As he indicated, there was a recommendation from the Calman commission that the UK Insolvency Service should be made responsible for laying down rules to be applied by insolvency practitioners on both sides of the border. The noble Lord asked a very pertinent question about why the Bill goes beyond the specific terms of the Calman commission's recommendation.

The commission was persuaded by evidence from stakeholders, such as the Law Society of Scotland and the Institute of Chartered Accountants of Scotland, that a consistent approach to winding up would bring significant benefits to creditors, companies, insolvency practitioners and others dealing with insolvent companies in both England and Wales and Scotland. The Institute of Chartered Accountants of Scotland said:

"We do not see any advantage in encouraging divergence of practice when businesses across the UK operate in a similar environment",


"This will promote a more stable environment for corporate recovery and turnaround and be more comprehensible for creditors and potential investors"

Certainly in the present environment, that is an important consideration. Many winding-ups involve groups of companies that operate on both sides of the border. We believe that it will be more efficient in time and money if the same winding-up rules, other than where Scottish common law requires something else, are applied to each insolvent company in the group.

These amendments will make reorganisations more efficient and increase returns to creditors and shareholders. Group reorganisations may involve subsidiaries being wound up, and a common approach to winding-up rules should help to reduce the cost and complexity of group restructurings whose constituent companies operate both in Scotland and in England and Wales.

Indeed, in its evidence to the Calman commission, the Institute of Chartered Accountants of Scotland, which regulates most of the insolvency office-holders working in Scotland, highlighted the benefit of consistent rules in promoting a more stable environment for corporate recovery and turnaround. Further, the Law Society of Scotland reported in its evidence to the commission that, because of the increased number of insolvencies of groups of companies, practitioners have for a number of years been having difficulties where parts of the group are subject to the rules for England and Wales and parts to the Scottish rules. The Calman commission was persuaded that there should be a consistent approach to winding-up rules, and the UK Government agree with that position.

The commission recognised that its first option for implementing its recommendation that the UK Insolvency Service, with appropriate input from the relevant departments of the Scottish Government, should be made responsible for laying down insolvency rules for England and Wales and Scotland might not be achievable for technical reasons. It therefore acknowledged that the devolution settlement might need to be amended to secure the desired effect.

Perhaps I may explain to the noble Lord and the Committee why the Bill is somewhat different from the recommendation. The Insolvency Service has no powers to make rules. It is an executive agency of the Department for Business Innovation and Skills. Its officials advise Ministers. However, even if the commission had recommended that UK Ministers, in place of the Insolvency Service, be responsible for laying down rules in England and Wales and in Scotland, the first option would not be viable. With such an approach, legislative and executive competence in this area would remain with the Scottish Parliament and Scottish Ministers under the 1998 Act, who could thus overwrite rules made by the UK Parliament. That could lead to continued divergence and possibly more confusion, which is just what the commission was seeking to avoid. That is why we are adopting the second of the commission's options-amending the 1998 Act-and re-reserving the winding-up of business associations in its entirety.

The noble Lord also raised the issue of housing associations. I am well aware that there have been concerns about the effect of this clause on the Housing (Scotland) Act 2010 and on registered social landlords caused by the removal of the specific exception to the insolvency reservation relating to such bodies. This removal is a logical consequence of re-reserving legislative competence for the winding-up of business associations generally to ensure the coherence of corporate insolvency legislation.

The provisions in this Bill relating to insolvency should therefore not be read as implying that we consider that the housing regulation regime should be changed. That is quite rightly a matter for the Scottish Government and the Scottish Parliament. We want to ensure that provisions of the Housing (Scotland) Act 2010 that rely on the exceptions are not undermined by the change to legislative competence in this area. This Bill already includes a power to make savings provisions, which could be used for the avoidance of doubt if any doubt arises.

As for the future, we appreciate that there may be particular types of business association for which there is good justification for additional rules, and we think that those rules need to be considered and put in place by the UK Government to ensure coherence with the overall insolvency regime. I assure the Committee that we will be receptive to requests from the Scottish Government in relation to this sort of issue, as we always are when the Scottish Government need changes to be made to a reserved area in order to give full effect to their policy. Should it be appropriate, we would consider bringing forward Section 104 orders or UK legislation where necessary to bring this about.

Both the Parliamentary Under-Secretary of State in the Scotland Office and I had meetings separately last year with the Scottish Federation of Housing Associations to hear and to try to ensure that we fully understood their concerns and to provide reassurances that we will preserve the effect of the Housing (Scotland) Act 2010, which will in turn protect the independence of the housing regulator. I am not sure of the date of the written representations to which the noble Lord referred from the Scottish Federation of Housing Associations. However, my officials have also met representatives from the SFHA, the Scottish housing regulator and the Scottish Government's housing directorate to work through those reassurances in detail. We certainly believe that we had addressed the concerns of the Scottish Federation of Housing Associations. Clearly, if these concerns are still current, I would wish to have an opportunity to see them again because we thought that we had addressed them.

Schedule 2 is introduced by Clause 12. We believe that having just one Parliament responsible for the rules relating to winding up in Scotland will aid flexibility and responsiveness, and will address problems that have been reported by insolvency office-holders when the law changed in one jurisdiction but not the other. In fact, we are taking the opportunity provided by the Bill to deliver for Scotland the benefits of modernisation changes, some of which have been in place in England and Wales, and for the existing reserved insolvency procedures in Scotland, for nearly three years now.

These changes lift administrative burdens by allowing insolvency office-holders to make full use of advances in information technology made over the past quarter of a century to communicate with creditors, thus reducing the costs for the benefit of those creditors. The changes were made to reserved insolvency procedures in Scotland in 2009 and 2010 by a combination of legislative reform orders and subordinate legislation, but because of the present division of responsibility for rules between the UK and Scottish Parliaments the changes could not at that time be extended to windings-up in Scotland.

That is an example of some of the unnecessary and confusing divergences that have developed between the two jurisdictions and that were brought to the attention of the Calman commission, which prompted the recommendations, the spirit of which the Government accept and are seeking to address in this legislation. We hope that as a result of this legislation we are ensuring that creditors of windings-up in Scotland are able to enjoy similar benefits to those provided to creditors of windings-up in England and Wales.

This is sensible evidence-based legislation, and I therefore commend the clause and, when we come to it, Schedule 2 to the Committee and propose that they stand part of the Bill.

Photo of Lord Browne of Ladyton Lord Browne of Ladyton Labour 1:00 pm, 2nd February 2012

My Lords, I am very grateful to the noble and learned Lord for his comprehensive response. I had hoped that he would lay out clearly why the Government have chosen to go beyond the Calman recommendations, which he has done, and I found his arguments persuasive.

Clause 12 agreed.

Clause 13 : Regulation of the health professions

Amendment 21

Moved by Lord Wallace of Tankerness

21: Clause 13, page 9, line 7, at end insert-

"The reference to any profession regulated by the Regulation of Care (Scotland) Act 2001 includes-

(a) any profession regulated by that Act by virtue of any subordinate legislation (whenever made) which is or could be made under the Act, and

(b) any profession regulated by any Act of the Scottish Parliament so far as it re-enacts that Act (including any profession regulated by virtue of subordinate legislation under any such Act);

and the references to that Act are to that Act as it has effect on the date on which this paragraph comes into force.""

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, this amendment is minor and technical in nature and has been laid following work undertaken with the Scottish Government to clarify the scope of Clause 13. The United Kingdom's intended policy remains unchanged; we have always said that while we intend to re-reserve the regulation of health professions to Westminster, the regulation of social care professions should remain a devolved matter within the legislative competence of the Scottish Parliament. Likewise, the Scottish Government's position on Clause 13 remains unchanged. They remain opposed in principle to the re-reservation of the regulation of health professions.

To give some background, health profession regulation is currently reserved by reference to specific Acts of Parliament, all of which were obviously in place when the 1998 legislation went through. Other health professions have been subject to regulation under subsequent statutes. Under the architecture of the 1998 Act they would not have been caught up in this. A considerable number of bodies made representations to the Calman commission that this was an unsatisfactory position, which is what we sought to address.

Despite the differing policy positions of the United Kingdom and Scottish Governments on the clause generally, this amendment clarifies the intent behind the clause and is an example of where we have listened to the technical concerns, which the Scottish Government have raised, and have sought to act on them. The Scottish Government's concern was that, as originally drafted, Clause 13 might have an unintended consequence for the social care professions that might in the future become regulated by the Scottish Parliament under the Regulation of Care (Scotland) Act 2001 or a successor Act. The concern was that the regulation of these new social care professions would fall within the scope of the new re-reservation, which is not the United Kingdom Government's intention.

This minor and technical amendment makes it explicit that regulation of the social care professions is, and will remain, a matter that is devolved to Scotland. I hope that that clarifies this amendment. I beg to move.

Photo of Lord Boyd of Duncansby Lord Boyd of Duncansby Labour

My Lords, we welcome the clarification that this amendment gives to this clause. It was never the Calman commission's intention that the regulation of residential care workers should be reserved as opposed to health professionals. Perhaps I may add to the background. The Calman commission received evidence from the royal colleges, which are concerned at the possible fragmentation of standards as a result of the Scottish Parliament on the one hand and the UK Parliament on the other having responsibility for the regulation of health professionals. Common standards for health professionals are of evident benefit to the UK as a whole, and the Government's implementation of this recommendation is to be welcomed.

On a final point, the re-reservation of powers to the UK Parliament in this case is a signal that devolution is about finding the right balance between the powers that sit with the UK Parliament and those that sit properly with the Scottish Parliament. It is important that we get a system that works well not only for the people of Scotland but for the people of the UK as a whole.

Amendment 21 agreed.

Clause 13, as amended, agreed.

Debate on whether Clause 14 should stand part of the Bill.

Photo of The Duke of Montrose The Duke of Montrose Conservative

My Lords, in opening this debate on what is presently something of a probing Motion, I want just to draw the attention of the Committee to the fact that this and the two previous amendments have broached the subject of Westminster reserving powers that were originally part of the general devolution under the Scotland Act. This is certainly an area to which the original convention on legislative consent Motions applies. Not unexpectedly, this has caused a few ripples at Holyrood because it was beginning to look like there was something of a precedent that devolution could go only one way, and that was for it to be increased. The power being proposed is an implicit rather than an explicit power that is to remain with Westminster. There may of course be other powers in the 1998 Act that have yet to be explored, but in these proposals it is now obvious to everyone that new reservations are possible. At the same time, we need to be sure that what is being proposed is totally necessary. I wish to be sure that the Government have given enough thought to its implications.

The question of Antarctica is particularly interesting because one Scotland Bill committee of the Scottish Parliament felt that it could agree to this being included in the Bill, but the next committee came out and said that it would not agree. We still await the final outcome. Another reason for visiting Antarctica in our discussions is that 15 days ago it was the 100th anniversary of the arrival of a certain Captain Scott at the South Pole, and we want to pay tribute to him and to his colleagues on their efforts and their role in the influence that we have in that part of the world.

On a slightly lighter note, I should declare my interest in Antarctica, although it is not pecuniary in any way. As the chief of Clan Graham, I follow eagerly the influence of Grahams. We have Graham Streets, Graham's Dyke and Grahamstown, but Antarctica is the only place in the world with territory known as Graham Land. Unfortunately, it was not named for an achievement on the part of any Graham himself, but is the result of the commissioning in 1832 by Sir James Graham, then the First Lord of the Admiralty, of an expedition led by John Biscoe.

Neither the United Kingdom nor Scotland would pretend that there was any territorial claim involved, but we are really dealing with a power of governance and administration. I note in passing that there has been a consultation on a new Antarctic Bill that ended on 12 February 2010 but which does not seem to have produced any follow-up. Perhaps it has fallen foul of the uncertainty about the various devolution proposals. Can my noble and learned friend the Minister tell us what interest the Scottish Government showed in the consultation, and does it appear that this is a power that the Scottish Parliament has ignored? In the first instance, it might appear to centre on the right to license expeditions and scientific research in the area. I would suggest that my noble friend Lord Forsyth knows a little more about this, having recently completed an expedition there.

British Antarctica covers a large area, being the area of ocean and land south of 60 degrees south latitude of the whole Antarctic area. I think that noble Lords will agree that there are great pressures currently facing the Scottish fishing industry with the endless red tape and restrictions under the revised common fisheries policy. When driven to it, fishermen might consider turning their attention to just such an area, where there is a potential commercial fishery for the Patagonian toothfish. There are of course other interests that might wish to expand their activities in Antarctica.

Of course, what we have heard is that the Scottish Parliament has not got around to discussing its committee's recommendations, and unless the Minister can enlighten us, we do not know whether the Scottish Government consider that they have any interest in their current power in the area. A factor on which I am tempted to speculate is that their interest might be dampened by the consideration that, if they were required to act in the administration of the area, their current plans for a defence capability, the scope of which is supposed to be based on that of some of our Scandinavian neighbours, might require a good deal of re-estimation. I understand that they may be thinking of having an army of which 60 per cent would have the capability of being deployed in other parts of the world, but if their navy is limited to a few frigates and a variety of smaller boats with no submarines, there would not be much capability outside Scottish waters. A great attraction for the young used to be, "Join the British Navy and see the world", but I suggest that that might become "Join the Scottish Navy and see St Kilda". It might be a little speculative to think that, in considering this, the Scottish National Party sees that having a responsibility for this area might stretch what it has in mind in terms of providing fisheries protection or some other role, and there is no way that the type of defence equipment that Scotland is likely to have could be stretched in this field.

In spite of this sort of speculation, does my noble and learned friend know of any good reason why Scotland's influence should be excluded from its possible responsibilities in this area?

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative 1:15 pm, 2nd February 2012

My Lords, I welcome this clause, and indeed when discussing the Scotland Bill offstage with my noble friend, he has tried to persuade me that it is a great Bill because it would bring back control of Antarctica to the Westminster Government, although "control of Antarctica" is perhaps putting it too strongly. Of course, another week has gone by and the Scottish Parliament has still not debated the report of its own committee, which suggests that legislative consent should not be given to this clause. So as my noble friend the Duke of Montrose has pointed out, it is difficult to surmise why the committee might now wish to retain responsibilities in respect of Antarctica, and the previous committee quite sensibly took the view that Antarctica should be a matter for the Westminster Government and the Foreign Office. As far as I know, Donald Trump has no plans to build a leisure facility in Antarctica, so I cannot imagine why the First Minister would think that his writ should run to Antarctica.

As my noble friend indicated, I had the pleasure of going to Antarctica a year ago, and it really is a spiritual experience. It is quite amazing. It is the only part of the planet that is completely unspoiled and the only example of an international treaty that I can think of which has actually worked. I think that that treaty is now up for renegotiation and renewal and it is absolutely clear that this clause is required because it should be obvious to everyone involved in those negotiations what the British interest is. I hope that the British interest will rest with ensuring that Antarctica remains a place where scientific endeavour and experiment can be carried out and which is protected from exploitation.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, the noble Lord is being far too modest in saying that he went on an expedition to Antarctica. He climbed Mount Vinson, the highest mountain there, and he sent many of us dispatches which we received with great interest. He also raised hundreds of thousands of pounds for charity, and I think he should be commended for all of that.

Noble Lords:

Hear, hear!

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I am most grateful to the noble Lord. I think that he and I need to be careful because we will soon be appearing in the nat blogs as an example of an unholy alliance. I have suggested to my noble friend that we should form a roadshow and go around Scotland extolling the virtues of the union. The only other explanation I could think of for why the Scottish Government are now pressing for some control over Antarctica is that perhaps they think it might be a good idea to pass regulations keeping me there on ice for the winter in order to avoid open debate. I am most grateful to the noble Lord, and I thank him for the cheque he sent towards the fund for Marie Curie Cancer Care.

I support this clause because it is entirely sensible. I suspect that it was an oversight because there is a very serious job to be done. While I was in Antarctica I met some scientists who were drilling holes in order to measure movement in the ice-cap, but one of the problems they faced was that they kept on hitting gas and oil. There are considerable mineral resources in Antarctica and I hope that they will stay there for a long time so that Antarctica is preserved. I hope that the British Government will take very seriously their responsibilities in this regard.

My noble friend the Duke of Montrose also mentioned the Scott expedition and the centenary of Scott's arrival at the South Pole-only to discover that Amundsen had beaten him there. We all celebrate the courage that Scott and his party showed in their disastrous attempt to get back to safety from the South Pole.

So I welcome the clause. Of all the clauses in the Bill, it is the one that I can endorse with most enthusiasm. I am most grateful to my noble friend for ensuring that the interests of Antarctica are in good hands.

Photo of The Earl of Mar and Kellie The Earl of Mar and Kellie Liberal Democrat

My Lords, does the clause in any way inhibit Scottish universities' polar research? My noble friend has been to the Antarctic. In 1902, William Speirs Bruce led the Scottish national Antarctic expedition in the steam yacht, "Scotia", its research ship. The "Discovery" was built in Dundee. Speirs Bruce also explored the Arctic, and one can still find the remains of Brucehaven in Spitsbergen. Perhaps I may ask a question that is vaguely similar to one asked by the noble Lord, Lord Forsyth. Are we trying to prevent Scots universities exploring or researching in Antarctica but not in the Arctic?

Photo of Lord Boyd of Duncansby Lord Boyd of Duncansby Labour

My Lords, we support the inclusion of the clause, which seems sensible. Antarctica is obviously an important international resource. It is regulated by a treaty which, as we have heard, is now up for renewal, and it is clearly important that environmental protections are put in place to preserve Antarctica as a pristine part of the planet. Perhaps I should declare an interest as having acted for Donald Trump in a certain planning inquiry, but I assure noble Lords that there is no connection between my supporting this clause and Mr Trump.

As a Scottish Minister, I was not aware that we had any responsibility for Antarctica. I see my noble friend Lord McConnell nodding, so I do not think that he was aware of his responsibility. Clearly, that was a dereliction of duty.

Photo of Lord McConnell of Glenscorrodale Lord McConnell of Glenscorrodale Labour

My Lords, I can confirm that I was aware of my responsibilities as First Minister of Scotland, but I can also confirm in response to the noble Duke, the Duke of Montrose, that at no time in the five-and-a-half years that I served as First Minister of Scotland was I ever asked a parliamentary question on this subject, was a parliamentary debate on it ever suggested or, for that matter, did we ever receive any correspondence on it.

Photo of Lord Boyd of Duncansby Lord Boyd of Duncansby Labour

The question that I was going to pose was why we did not extend the ban on smoking in public places to Antarctica. Clearly, that was an oversight on our part. We could also have extended the scheme for insulation of older persons' homes, which was one of the then Scottish Executive's schemes. Of course, we are now spared the question as to whether the referendum on independence should also extend to Antarctica. The noble Duke, the Duke of Montrose, has pointed out that if independence was ever to come, the First Minister would not have to consider whether to expand his navy by adding an ice-breaker to it. We fully support the clause.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, I am grateful to my noble friend the Duke of Montrose for giving us the opportunity to discuss this matter and to all those who have welcomed this clause. I join my noble friends the Duke of Montrose and Lord Forsyth in saluting Captain Scott and his four fellow adventurers who on 17 January 1912 reached the South Pole. We are all conscious that theirs was a long struggle that ended very sadly, but, nevertheless, 100 years on, we remember the extraordinary feat of those explorers. I also join those who have paid tribute to and saluted my noble friend Lord Forsyth for climbing Mount Vinson last year. We all remember getting the reports and his managing to raise substantial funds both for Marie Curie Cancer Care and Children in Need India.

If the former First Minister knew that he had responsibilities for Antarctica, it is clear that he was not advised on it by his senior law officer, and he certainly did not share the fact with his Deputy First Minister.

My noble friend the Duke of Montrose asked about the draft Antarctic Bill. It was in the context of preparing for that draft Bill that it became apparent that, while outer space had been reserved, Antarctica had not. No doubt the noble Lord, Lord Sewel, will tell us why that was the case.

Photo of Lord Sewel Lord Sewel Labour

Does the Minister agree that it is a disgrace that, because of the incompetence of Ministers in 1998, we have had to re-reserve Antarctica, which is now finishing up where it belongs?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

It was oversight, I suspect, but it is important that we now address it. Following completion of the consultation, the Antarctic Bill is drafted subject to minor amendments and is awaiting parliamentary time. There would have been a clause in that Bill seeking to resolve the devolution issues, but, as this Bill is now before Parliament, we thought that it was more appropriate to deal with it here.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

Will the Minister confirm that South Georgia and the South Sandwich Islands are not included in the definition of Antarctica?

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

I hesitate, because I recall seeing a definition of Antarctica as being all seas and islands below 60 degrees south. I was assigned to an Antarctic Bill in the House of Commons because I represented islands north of 60 degrees north, which seemed to be interesting logic. I think that, because South Georgia and the South Sandwich Islands are British Overseas Territories, they are not included in the definition-perhaps I will receive some clarification on that.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

As I understand it, the Falklands are a dependent territory of the United Kingdom and the South Sandwich Islands and South Georgia are dependencies of the Falklands. I presume that they are not included because of that. That is important given recent statements in Argentina and the importance of those two island groups as well as the Falklands.

Photo of Lord Lyell Lord Lyell Conservative

Perhaps I may make my first intervention-I am sure that the Minister will be delighted. I have an interest very similar to that of my noble friend the Duke of Montrose in that in the first week, even before events gravitated to the Falkland Islands, great events took place on the island of South Georgia. In the communications with the Royal Marines and the forces there, there was considerable discussion about the Lyell Glacier, named, definitely, after my great-great-great uncle, one of the fathers of modern geology. As far as I am aware, there is no mineral wealth under the Lyell Glacier or anything that I or anybody in Scotland would be able to claim, but the charts and accounts will give us some assistance. It would be very helpful if my noble friend Minister could give us clarification as to what is classified as "Antarctica" for the purposes of the Bill.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat

My Lords, for the purposes of the Antarctic Act 1994, which was to implement our international obligations, "Antarctica" means,

"the continent of Antarctica (including all its ice-shelves) ... all islands south of 60° South latitude (including all their ice-shelves)"-

so I do remember something from 18 years ago-

"all areas of continental shelf which are adjacent to that continent or those islands and which are south of 60° South latitude, and ... all sea and airspace south of 60° South latitude".

The important point is that these are the areas to which the international obligations, many of which are of an environmental nature, apply. As I have indicated, that became apparent in considering the draft Antarctic Bill.

My noble friend Lord Mar and Kelly asked about the position of Scottish universities. The important point is that we take our responsibilities for compliance with our obligations under the Antarctic Treaty very seriously. As my noble friend said, Antarctica is the last unspoiled wilderness and has been the subject of many successful international treaties. The United Kingdom Government certainly take their obligations under these treaties very seriously. We want to ensure a strong treaty system which also protects our sovereignty in relation to the British Antarctic Territory. Therefore, we want the position to be completely clear and without any dubiety.

Updating Schedule 5, therefore, to include Antarctica retrospectively, will validate any legislative and executive Acts that the United Kingdom Government have passed since devolution that make provisions for Scotland in relation to Antarctica. It will also ensure that any organisations or institutions based in Scotland, including academic research institutions such as the University of Edinburgh, are then able to go to Antarctica and carry out their work in full compliance with the treaty. The Arctic is somewhat different in that the Arctic states themselves have sovereignty over their domestic territories. Issues over responsibility for regulation of activities that arise in the Antarctic do not arise in the Arctic. The Antarctic Treaty and related documents have to be implemented by the United Kingdom. As I have indicated, this particular clause corrects an oversight and makes retrospective provision to cover any Acts passed.

I was also asked about the position of the Scottish Government. It is certainly my understanding that the Scottish Government have expressed no direct interest in Antarctic affairs and have no expertise to engage with future international negotiations in that respect. I therefore very much hope that by passing this clause we can regularise an important issue.

Photo of The Duke of Montrose The Duke of Montrose Conservative 1:30 pm, 2nd February 2012

My Lords, I thank all those who have contributed to this discussion. It has been some time since Antarctica has been before your Lordships' House and covered in so much detail. It is particularly interesting to hear former Scottish Ministers voicing what the perspective was when they were holding office north of the border. I am glad to think that my noble and learned friend did not think that the Scottish Parliament would be less assiduous in maintaining the pristine nature of Antarctica because I am sure that they will have looked at that with great care.

Clause 14 agreed.

House resumed. Committee to begin again not before 2.33 pm.