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My Lords, I shall be very brief on this because I know that we have some of the most distinguished lawyers from Scotland waiting in the wings to talk about the Supreme Court. I am looking forward to hearing them do so.
This amendment was moved by my colleague Thomas Docherty in the Commons and has the support of the trade unions. It comprises a simple, technical new clause. Most people think that the Scottish Parliament already has the power to decide on the model for the ScotRail franchise, or for the franchise in Scotland. After all, it has to fund that franchise through its Ministers and it is responsible for the letting of the franchise. It is also responsible for funding the building of new railways in Scotland. We have successfully given greater powers to Scottish Ministers to do everything except determine the model of that franchise. I will not argue that a switch to a not-for-dividend model would necessarily be the best. The issue is that Scottish Ministers must let the franchise according to a privatised model. I am not saying that that is wrong; I am just saying that they should have freedom to decide what the model should be. I hope that noble Lords, particularly the Minister, will note that I am suggesting additional powers for Scottish Ministers and the Scottish Parliament, which would be welcome.
The Railways Act 2005 specifically bans a public body from acting as the franchise operator. Thereby, Scottish Ministers are banned from having a public body to deal with these matters. The only exception to that is if that body is the operator of last resort-as is now the case with the east coast main line. The proposed new clause would give Scottish Ministers the right not only to fund the railway, to let the franchise and to monitor its performance-all of which they have to do anyway-but to determine the shape of the model involved. This might well result in a privatised model, such as the one that exists on the ScotRail franchise, or perhaps a co-operative model. Ministers might ask Transport Scotland to run the franchise, or they might set up a new company called "Scottish Passenger Transport" to do so. It gives them that flexibility.
This proposal was not considered by the Calman commission because it involved a small technical change. I hope that the Minister will give serious consideration to the amendment. It was divided upon in the Commons because-I and Mr Docherty believe-it was misinterpreted as being a proposal to bring ScotRail into public ownership. That is certainly not the case. The only power that the amendment would give is freedom to Scottish Ministers to decide what the model should be, as well as all the other aspects.