Committee (2nd Day)

Scotland Bill – in the House of Lords at 3:35 pm on 19th January 2016.

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

Clause 34: Crown Estate

Amendment 43

Moved by Lord Davidson of Glen Clova

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

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Shadow Spokesperson (Treasury), Shadow Advocate-General for Scotland 3:41 pm, 19th January 2016

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

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

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

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

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

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

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

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

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords 3:45 pm, 19th January 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo of Lord McCluskey Lord McCluskey Crossbench 4:00 pm, 19th January 2016

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

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

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

Photo of Lord Gordon of Strathblane Lord Gordon of Strathblane Labour

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

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

Photo of The Earl of Kinnoull The Earl of Kinnoull Crossbench

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

As has been observed, the Crown Estate’s core constitutional document is the Crown Estate Act 1961. That document, however, is a cold discussion of constitution and functions and does not address how the Crown Estate works in practice, especially how it works together with Ministers. That is in the HM Treasury and Crown Estate framework document, which is publicly available on the website. That document, which is a model of clarity, makes it abundantly plain that the Crown Estate assets are to be managed on an arm’s length basis. Paragraph 3 states that,

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

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

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

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

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

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

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

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

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

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

I do not believe that my amendments are in any way inconsistent with the Smith commission agreement; the Bill’s clauses as currently cast are. I would transfer the management of the Scottish Crown Estate assets to a similarly run independent body, so that these important things cannot be used for political purposes, and so that their stewardship continues to be managed on a long-term basis for the people of Scotland.

Photo of Lord Sanderson of Bowden Lord Sanderson of Bowden Conservative

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

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

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

Photo of The Earl of Dundee The Earl of Dundee Conservative

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

Photo of Baroness Liddell of Coatdyke Baroness Liddell of Coatdyke Labour

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

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

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

Photo of Lord Lang of Monkton Lord Lang of Monkton Chair, Constitution Committee 4:15 pm, 19th January 2016

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

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

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

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

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

Photo of Lord Hope of Craighead Lord Hope of Craighead Convenor of the Crossbench Peers

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

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

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

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

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

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

Photo of Lord Mackay of Drumadoon Lord Mackay of Drumadoon Judge

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

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

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

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

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

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

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

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

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

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

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

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

I now turn to the amendments in the name of the noble Earl, Lord Kinnoull, who spoke passionately about stewardship and the future arrangements of the Crown Estate. Amendments 45 and 47 seek to address concerns about the arrangements which will govern the management of the Crown Estate in Scotland in the future. Other noble Lords have expressed views on this matter. Your Lordships will be aware that the Smith commission agreement stated that responsibility for the management of the Scottish assets of the Crown Estate will be transferred to the Scottish Parliament. However, the Scottish Parliament is a legislative rather than an executive body and, for that reason, is not equipped to undertake the management functions. Hence the clause confers the ability to legislate in relation to the management of the Scottish assets on the Scottish Parliament, but the management functions relating to the Scottish assets are to be transferred to Scottish Ministers, to an executive body or to such other transferee body as they nominate.

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

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

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

After the transfer, the Scottish Government intend to run a public consultation to establish the long-term future of the management of the Scottish Crown Estate assets. I am sure that the Scottish Government, who follow the proceedings of this House very closely, will have heard the contributions and the sense which this House is conveying on the matter. I agree with the noble Earl that Scottish assets should be managed responsibly. Stewardship is vital, and it is the duty of this House and of the people of Scotland to call on the Scottish Government to be clear about their plans for the future management of the assets.

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

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

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

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

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

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

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

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords 4:30 pm, 19th January 2016

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

“leave out ‘C’ and insert ‘A’”,

the Scottish Parliament would have a role, too.

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

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

The clause enables the Scottish Parliament to make its own legislation about the management of the Crown Estate in Scotland after the transfer—and beforehand, should it wish to have arrangements in place in readiness for transfer. The Scottish Government have already made commitments to devolution to island communities. In the document

Empowering Scotland’s Island Communities

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

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

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

Photo of Lord McCluskey Lord McCluskey Crossbench

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

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

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

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

I turn to some of the specific points that were raised —in particular, Fort Kinnaird, which I believe some people thought was a Ministry of Defence base but turns out to be a shopping centre in Edinburgh. I very much agree with what my noble friends Lord Lang and Lord Sanderson have said about this and the importance of not upsetting joint arrangements built on trust. The management of all the Crown Estates, wholly and directly owned Scottish assets, will be transferred under the transfer scheme. Fort Kinnaird, as has already been said, is not wholly and directly owned by the Crown; it is held by an English limited partnership in which the Crown Estate commissioners manage interests alongside other commercial investors. The partnership owns property in other parts of the United Kingdom, and Fort Kinnaird has never been wholly and directly owned by the Crown. It was brought into the partnership by the commissioners’ joint venture partner, the Hercules Unit Trust, and is managed by British Land. Revenue from the Crown Estate’s interests in Fort Kinnaird will therefore continue to be passed to the UK consolidated fund for the benefit of the UK as a whole.

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

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

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Shadow Spokesperson (Treasury), Shadow Advocate-General for Scotland 4:45 pm, 19th January 2016

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

Amendment 43 withdrawn.

Amendments 44 to 47 not moved.

Amendment 48 had been withdrawn from the Marshalled List.

Amendments 48A to 51 not moved.

Clause 34 agreed.

Clause 35: Equal opportunities

Amendment 52

Moved by Lord Davidson of Glen Clova

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

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

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

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

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

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

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

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

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Shadow Spokesperson (Treasury), Shadow Advocate-General for Scotland

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

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

The Bill before us already includes the ability to legislate for women’s representation on public boards, which of course is welcome, but we want to see that go further. We want to ensure that there is a commitment to bring about equality in every walk of Scottish life, including in politics itself. We are now in a position where the economic case for women’s equality in public life has been made and won. It could not be clearer. One of the contributors to this change in attitude is found in the work of my noble friend Lord Davies of Abersoch. His contribution to the debate should not be understated. In his final report he stated:

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

He also says:

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

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

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

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

Photo of Lord Stephen Lord Stephen Liberal Democrat Lords Spokesperson (Scotland)

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

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

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

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

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

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

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

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

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

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

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

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

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

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

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

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

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

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

The Smith commission did not call for further powers to be devolved to the Scottish Parliament in respect of the EHRC, which is, and will continue to be, a reserved body. The Government do not think that it would be appropriate to impose, or permit the Scottish Parliament to impose, new enforcement requirements or duties on the EHRC when the nature and application of any new Scottish legislation remains unknown. The EHRC already has a significant role in providing advice to the Scottish Parliament. It has a Scotland commissioner and a Scotland committee, which has the delegated powers of the commission to advise the Scottish Government on the effect of legislation or a proposed change in the law. Officers of the EHRC and the commissioner already appear before the Scottish Parliament, and the commission sends its annual report to the Parliament. We believe that this is an appropriate level of involvement and engagement.

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

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

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

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

Fourthly, Amendment 52 would allow the Scottish Parliament to create new protected characteristics for board appointments and quotas. The Government believe that the equality provisions in the Bill deliver the intent of the Smith commission agreement in what is a complex area of law. The clause is the result of careful consideration and reflection on comments of stakeholders, including the Scottish Government, and we are confident that it strikes the right balance. The Smith commission stated that devolution of equal opportunities relating to public bodies should not be limited to provision for gender quotas. The Government took notice of that and we are giving the Scottish Parliament the ability to go further. An example is the ability of the Scottish Parliament to introduce new protected characteristics on top of the nine already in the Equality Act 2010, which include sex, race and disability. This would give the Scottish Parliament greater flexibility when imposing new equality requirements on public and cross-border bodies in Scotland that exercise devolved functions.

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

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

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Shadow Spokesperson (Treasury), Shadow Advocate-General for Scotland 5:00 pm, 19th January 2016

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

Amendment 52 withdrawn.

Amendment 52A not moved.

Amendments 52AA to 52AF

Moved by Lord Dunlop

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

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

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

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

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

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

Amendments 52AA to 52AF agreed.

Amendments 52B and 52C not moved.

Amendment 52CA

Moved by Lord Dunlop

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

Amendment 52CA agreed.

Amendments 52D and 52E not moved.

Clause 35, as amended, agreed.

Clause 36 agreed.

Clause 37: Tribunals

Amendment 52F

Moved by Lord Wallace of Tankerness

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

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords

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

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

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

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

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

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

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

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

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

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

Amendment 52H seeks to delete new paragraph 2A(7) and is in many respects a probing amendment. That particular sub-paragraph provides that other tribunals can be added to the list of tribunals whose functions are subject to the qualified transfer after this paragraph comes into force. It may be that this is future-proofing, but if it is more than that, it would be helpful if the Government would explain which tribunals are envisaged to be covered by this provision so that we are in a position to assess whether such a wide-ranging power is necessary.

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

Clause 37 makes it clear that this devolution is,

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

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

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

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

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

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Shadow Spokesperson (Treasury), Shadow Advocate-General for Scotland

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

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

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland

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

Let us be clear: Clause 37 provides a mechanism for enabling the transfer of functions of reserved tribunals to the Scottish tribunal system. The clause recognises the implications not only of paragraph 63 of the Smith commission agreement, but of paragraph 64, which recommended that the law providing for the underlying reserved substantive rights and duties governing the matters heard by these tribunals would continue to be reserved. Therefore, Clause 37 provides that these functions should be transferred by means of an Order in Council. That provides a degree of flexibility that would not otherwise be available. As the noble and learned Lord, Lord Wallace, observed, it is not really practicable to contemplate the transfer in one unit, as it were, of all these functions. The Order in Council will provide for the transfer of those functions, subject to conditions, that may be necessary to ensure the continuing effect of delivery of overarching national policy, and the underlying rights and duties that arise in areas of the law that continue to be reserved.

Amendments 52F and 52G are concerned with the transfer in respect of the employment tribunals and employment appeal tribunals. It is considered appropriate that this should proceed by way of Order in Council. Indeed, a draft Order in Council has been made available for consideration regarding this matter.

Let me assure the Committee of two things. First, any conditions or restrictions included in an Order in Council must be approved by both this Parliament and the Scottish Parliament before such an Order in Council can be made. Therefore, there will be scrutiny of any conditions attaching to such a transfer in both Parliaments. That is a consequence of the amendment proposed by Clause 37(2), which means that the form of Order in Council will be subject to the approval specified as “Type A” in Schedule 5 to Part III of the 1998 Act. Secondly, the Government do not agree that the terms of transfer of all reserved tribunal functions should be completely unqualified. There are circumstances in which it will be appropriate to ensure that functions can be undertaken in a way that maintains some continuing effective delivery of reserved legal matters—that is, of overarching national policy.

In these circumstances, it is proposed that an Order in Council in respect of employment tribunals will allow for consideration by the Scottish Government of the matter of fees in respect of those tribunals. That is not to say that in every instance where there is a transfer by means of Order in Council the matter of fees will not be addressed, but in the case of employment tribunals and employment appeal tribunals, I can say to your Lordships that the matter of fees will be for the Scottish Government and will not be reserved in any respect.

Reciprocity between the tribunals is a matter that will be worked out in the context of each Order in Council, and will certainly be the subject of discussion with the Scottish Government so far as any transfer is concerned.I am not aware at present of there being any specific statutory provision for such reciprocity to take place. I am aware that, as a matter of practice, tribunal judges, who are tribunal judges within the UK tribunal system, sit in both Scotland and England. There may be distinct benefits in attempting to ensure that that continues.

The matter of Scottish cases is to be addressed by Order in Council. At present it is contemplated that steps will have to be taken to ensure that forum shopping does not occur on the part of persons seeking recourse to tribunals within the United Kingdom. For example, in the matter of employment tribunals, it is contemplated that jurisdiction in respect of the Scottish tribunals will be determined by reference to place of business, place of residence, the place where a person is normally employed and the place where the incident or incidents in question took place. But, again, because of the flexibility allowed for by a proceeding in the form of an Order of Council, that can be dealt with on a case by case—or, at least, tribunal by tribunal—basis.

The noble and learned Lord, Lord Wallace of Tankerness, also mentioned the matter of staff, albeit he hesitated to include tribunal judges in that term. Be that as it may, there has been engagement with the tribunal judiciary within Scotland on this matter and there is no intention that members of the United Kingdom judiciary should be obliged to take one step towards Scotland, or one step towards the United Kingdom. It will be a matter for them whether they decide to join the new Scottish tribunal or remain within the United Kingdom Tribunals Service.

Going forward, there is the question of access to judicial expertise. That is a further reason why the term “or otherwise” appears in Clause 37, because it may be necessary over and above the issue of practice and procedure to ensure suitable conditions over transfers so that a certain level of judicial expertise can be maintained within tribunals. To take a simple example, it may be a matter of concern that the Scottish Government might want to dispose of expert legally qualified tribunal judges in one area and substitute for them lay members or a lay panel. Therefore, it is important to consider that again on a tribunal by tribunal basis.

I hope that has addressed the questions raised by your Lordships. I note the points that have been raised and will consider them but at this time I invite your Lordships—

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords 5:30 pm, 19th January 2016

The noble and learned Lord has not addressed Amendment 52H and what other tribunals it is anticipated may be covered in future.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland

That is, as it were, a known unknown at this stage. There are no particular tribunals in mind so far as that is concerned. However, if further tribunals are created, it is contemplated that they should not transfer automatically but should be subject to the same conditionality that is thought appropriate for existing tribunals. It is at that level of generality. It is not contemplated that there is any particular tribunal that will be addressed by that provision. I hope that answers the noble and learned Lord’s question and invite him to withdraw the amendment.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

On the point made by the noble and learned Lord, Lord Wallace of Tankerness, about taking cases from England, where the delays in particular situations can cause difficulties, and bringing them to Scotland, the definition of a Scottish tribunal in new sub-paragraph (11)(a) is as one,

“that does not have functions in or as regards any other country or territory, except for purposes ancillary to its functions in or as regards Scotland”.

I wonder whether there is any difficulty in relation to what I would have thought was a good idea—namely, to have the possibility of cases being referred to Scotland where that would help scheduling. However, it would be necessary for the law to be applied if a case was transferred to be the law that would be applied before it was transferred.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland

I am obliged to the noble and learned Lord, Lord Mackay of Clashfern. First of all, of course, we are dealing with reserved matters. If we were dealing with immigration, for example—a matter of reserved law—there could be circumstances in which the application of Scots law led to a different outcome from the application of English law. I notice that new sub-paragraph (11) in Clause 37 talks about the meaning of a Scottish tribunal, but that, on the face of it, does not appear to determine the scope of its jurisdiction to hear cases from outside Scotland. It is more a question of what is a Scottish case in that context. That is something that can be looked at, I suggest, in the context of each Order in Council for the transfer of each tribunal. There may be room to facilitate the transfer of cases in the manner suggested. That is something that we will take away and consider.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords

My Lords, I very much thank the noble and learned Lord, Lord Keen, for his response and the noble and learned Lord, Lord Davidson of Glen Clova, for his comments. On the question of fees, which we both raised in relation to employment tribunals, I think we probably believe that we got a satisfactory answer from the Minister. Indeed, I am very grateful to him for the replies that he gave us. In his further elaboration in his response to the noble and learned Lord, Lord Mackay of Clashfern, he indicated that the Government would be looking at—and, I hope, achieve—a situation whereby the Orders in Council will allow for the transfer of cases between jurisdictions to alleviate backlogs. It may well be that it applies the other way, too. Then we might be faced with a situation where a Scottish case could be heard in a jurisdiction furth of Scotland. No doubt, an Order in Council would be sufficiently well crafted to deal with that situation as well. The noble and learned Lord is right: I suspect that at the moment there is no statutory provision to allow reciprocity of the judiciary because, of course, we have a Great Britain tribunal system. Where there is legislation, it relates to Northern Ireland—for example, in relation to social security. I would hope to see the kind of provision that has been made for reciprocity with Northern Ireland apply in any orders that are brought forward with regard to the transfer of tribunals to Scotland.

With regard to the term “or otherwise”, the noble and learned Lord suggested that that related to judicial expertise. I think elsewhere in his response to the noble and learned Lord, Lord Mackay of Clashfern, he accepted and acknowledged that there could be situations where Scots law was different. That is reassuring. While I think it is absolutely right that there should be a common approach—indeed, the Smith commission recognised that when you are dealing with UK statutes, it is desirable that there should be a common approach—nevertheless there will be circumstances where the respective courts take a different view. It would be unfortunate if that were closed down.

I apologise that I had not seen the draft Order in Council before coming into the Chamber. I am not sure that the Law Society of Scotland had seen it either. If the Minister would like to indicate where one might find it, that would be very helpful. If he cannot do so today, he can certainly write to us and that will be satisfactory.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland

I undertake to advise the noble and learned Lord as to where a copy of the draft Order in Council can be obtained.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords

That would be helpful. In these circumstances, I beg leave to withdraw the amendment.

Amendment 52F withdrawn.

Amendments 52G and 52H not moved.

Clause 37 agreed.

Clauses 38 to 41 agreed.

Amendment 53

Moved by Lord Davidson of Glen Clova

53: After Clause 41, insert the following new Clause—

“Obstructive parking

(1) In Part 2 of Schedule 5 to the Scotland Act 1998, in section E1 (road transport), after “Exceptions”, insert—

“( ) The subject matter of sections 19 to 22 of the Road Traffic Act 1988 (stopping on verges, etc, or in dangerous positions, etc).

( ) The subject matter of section 41(5) of the Road Traffic Act 1988 (regulation of construction, weight, equipment and use of vehicles) in so far as it relates to the making of regulations making it an offence to cause or permit a vehicle to stand on the road so as to cause any unnecessary obstruction of the road.”

(2) After section 51 of the Road Traffic Offenders Act 1988 (fixed penalty offences), insert—

“51A Offences under the Road Traffic Act 1988

(1) Any offence in respect of a vehicle under regulations made by Scottish Ministers under section 41(5) of the Road Traffic Act 1988 (regulation of construction, weight, equipment and use of vehicles) is a fixed penalty offence for the purposes of this Part if it is specified as such in those regulations, but subject to subsection (2).

(2) An offence under an enactment so specified is not a fixed penalty offence for those purposes if it is committed by causing or permitting a vehicle to be used by another person in contravention of any provision made or restriction or prohibition imposed by or under any enactment.

(3) Before proposing a change in regulation of a subject matter falling under this section, Scottish Ministers shall—

(a) consult the Secretary of State, and

(b) publish and lay before the Scottish Parliament an assessment of the impact on road safety of any difference between the proposed change in Scotland and road traffic rules in other parts of the United Kingdom.””

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Shadow Spokesperson (Treasury), Shadow Advocate-General for Scotland

My Lords, I rise to speak to Amendment 53 standing in my name and that of my noble friend Lord McAvoy. At present, the Scottish Parliament has control over much of road safety. Indeed, the Smith commission recommended the following:

“Remaining powers to change speed limits will be devolved to the Scottish Parliament. Powers over all road traffic signs in Scotland will also be devolved”.

Clauses 39 and 40 reflect that recommendation by devolving full powers over the making of road signs and speed limits. However, as third sector organisations and Members in the other place have made clear, the Scottish Parliament does not have legislative competence over pavement parking. Amendment 53 would rectify this anomaly. The intended result is that parking offences such as parking on pavements, or by dropped kerbs, and double parking can be enforced by the Scottish Parliament.

At first blush, this may seem a somewhat picayune topic. However, I am grateful to both Mr Joe Irvin, on behalf of Living Streets Scotland, and the organisation Guide Dogs Scotland for their briefing, which demonstrates that this is a matter of significance. Pavement parking can be dangerous for pedestrians, especially people with sight loss, parents with pushchairs, wheelchair users and other disabled people. People with sight loss are particularly affected, as they can be forced into oncoming traffic which they cannot see. A survey by Guide Dogs Scotland showed that 97% of blind or partially sighted people encounter problems with street obstructions, and 90% of those experience trouble with vehicles parked on pavements. Pavements are not designed to take the weight of vehicles, and cars cause paving to crack and the tarmac to subside. This damage makes pavements uneven, creating a trip hazard for pedestrians, particularly the blind and partially sighted.

The cost of repairing pavements is, of course, a burden for local authorities. In London, there has been a general prohibition on pavement parking since 1974. Local authorities are responsible for civil parking enforcement and they have powers to make exceptions on a street-by-street basis. As my honourable friend the Member for Edinburgh South has said:

“Legislation to harmonise the law on pavement parking would mean that there is one law for everyone and would send a clear message that putting pedestrians in danger is not acceptable. Parking on the footway should only be permitted where a local authority determines that it is both necessary and safe to do so”.

I trust that this point, at least, resonates with the Government’s ambition to give local authorities greater autonomy over their own affairs. The amendment would allow parking legislation to proceed in the Scottish Parliament and enable local authorities and police to manage the streets more as communities wish.

Responding to a debate on this issue in the other place last month, the Parliamentary Under-Secretary for Transport stated that,

“it would not be without new cost burdens for local authorities. They would have to remove any existing local prohibitions, taking down signage, and then review every road in their areas to establish where limited footway parking should still be allowed, to avoid congestion, before going through the process of passing resolutions, putting down road markings, and erecting appropriate signage”.—[ Official Report , Commons, 4/12/15; col. 659.]

However, these concerns do not take into account the savings that would be made in maintenance costs for local authorities which, as we know, have to spend millions of pounds a year on repairing cracked pavements which have been damaged by vehicles.

The amendment would resolve any issue of competency and enable an impact assessment of the changes in comparison with the rest of the UK, which might have an overall benefit for understanding. This is significant, because recent efforts, including two Private Members’ Bills—and an upcoming Department of Transport round table on the issue—have focused wholly on England and Wales. In his response, will the Minister at least give an undertaking that relevant Scottish representatives will be invited to these discussions in future? Both the Scotland Office and the Scottish Government agree to the principle of devolving these powers, subject to agreement. There is agreement from this side of the House. I beg to move.

Photo of Lord Steel of Aikwood Lord Steel of Aikwood Liberal Democrat

I support subsection (3) of the new clause proposed by the amendment moved by the Official Opposition. I hold a number of offices in motoring organisations and I support the thrust of the clauses which the Committee has just passed, and the one we are discussing now, which give the Scottish Parliament more jurisdiction over road traffic management in Scotland. However, I hope when that happens they will be sensible and not introduce differences for difference’s sake, remembering that motorists in this country travel frequently across the border from England into Scotland and vice versa. It would create an intolerable situation if they were to go out of their way to make differences for the sake of it. I like subsection (3) because it requires that, before Scottish Ministers make any change in regulation, they should consult the Secretary of State and,

“publish and lay before the Scottish Parliament an assessment of the impact on road safety of any difference between the proposed change in Scotland and road traffic rules in other parts of the United Kingdom”.

That is an important safeguard and I therefore support the amendment.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour 5:45 pm, 19th January 2016

I also support the amendment which was moved so eloquently by my noble and learned friend Lord Davidson of Glen Clova. When the Chair called Lord McAvoy, one or two of us at the back thought that the noble Lord’s diet had suddenly worked remarkably well, but then we realised it was the noble Lord, Lord Davidson of Glen Clova. Some noble Lords may be thinking that I am the last person to make any comments about avoirdupois. There is nodding from the noble Lord, Lord Kerr of Kinlochard.

I cannot think of anyone better to answer this debate on parking than the noble Lord, Lord Dunlop—assuming that he is going to answer it. I hope he might be able to give the Committee an assurance. Responsibility for road signs was devolved to the Scottish Parliament and Government. Over the last few years, we in Scotland have seen cuts in education and further education; we have seen problems in the health service and with cancer treatment; we have seen the failure to implement the promised reduction in class sizes to 18 in Primary 1, 2 and 3. Those are just three of many cuts that have taken place, yet, for an astonishing reason, the Scottish Government have found money to make road signs in Gaelic everywhere throughout Scotland. I can understand why it would be justifiable in the Western Isles, parts of the Highlands or maybe in wee corners of Glasgow. My noble friend Lady Ramsay tells me that there are parts of Glasgow where Gaelic—or something akin to it—is spoken. However, all over Fife, Edinburgh and the Borders, railway and road signs are all in Gaelic and the cost is absolutely enormous. There are about 60,000 people in Scotland who speak Gaelic, but every one of them also speaks English, so what is the purpose? I also understand that in translating some railway and town names, it has not been easy to find a Gaelic equivalent. No doubt they have paid interpreters, translators and brilliant entrepreneurs of the language a huge amount of money to find a suitable Gaelic equivalent for some Scottish place names.

I hope the noble Lord, Lord Dunlop, can assure the Committee that, if we do devolve pavement parking, the fault notices for people who park cars improperly on the pavement do not have to be printed in Gaelic as well as English.

Photo of The Earl of Kinnoull The Earl of Kinnoull Crossbench

I wonder if the noble Lord can advise the House what the Gaelic for “Cumnock” is.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

That would take some time. I am not a Gaelic speaker. I can speak in Doric if required. I remember my granny used to call me a “daft loon”.

Noble Lords:

Oh!

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

I see that has received some approval, even from the Liberal Front Bench. I know that the noble Lord, Lord Stephen, has a skill in the Doric that is unrivalled in this House. When I got upset, my granny used to say, “Dinna fash yersel”—and I didna. I will be getting a note from Hansard at the end of this.

All I am seeking is a hope that when we do agree, as I think we should—my noble and learned friend Lord Davidson, talking about blind people and others, in a serious vein, eloquently put the case that this matter should be dealt with by the Scottish Parliament—we will not have expensive notices in Gaelic as well as in English.

Photo of Lord Lyell Lord Lyell Conservative

I declare a case of anger solidarity with the noble and learned Lord, Lord Davidson of Glen Clova. He mentioned parking in Edinburgh to me at the weekend. But I notice, and your Lordships will see, that the amendment refers to “stopping on verges, etc”. That might be part of the Road Traffic Act 1988 but since the noble and learned Lord and I are both much acquainted with that great artery of Angus, the B955, which crosses both his parish and mine, I wonder quite what “stopping on verges” can be.

I quite understand that there could be problems in Edinburgh or urban districts with guide dogs and the rest on the pavements, but I also wonder whether there is a problem in Scotland which there is not in England. Perhaps when my noble friend the Minister winds up, he could explain whether there is a difficulty in Scotland, let alone in Edinburgh. For goodness’ sake, let us not get into speaking in Doric or Gaelic—let alone in the wilds of Angus—but is there a problem and can he sort it out in my mind? Certainly, as far as the noble and learned Lord, Lord Davidson, and I are concerned, there is a strong case of anger solidarity, and I hope my noble friend can resolve it.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, perhaps I could add to the anger solidarity by disagreeing with my noble friend and the noble Lord, Lord Foulkes. The Gaelic language is an important part of Scotland’s culture. Indeed, when I was Secretary of State, I did a great deal to promote it. The whole point of devolving power to the Scottish Parliament, if we are going to allow for differences on matters such as road signs, is so that it can do stuff like this.

The noble Lord is constantly telling me about the importance of being sensitive to the fact that the Labour Party has been destroyed in Scotland, that people have voted for the SNP and we have to take account of those cultural differences, and why devolution is important. He cannot will the means and then complain about the results. The reason that Scotland is covered in signs in Gaelic is the same reason that Ireland is covered in signs in Gaelic. It is a wish on the part of nationalist Administrations to reflect the national culture. In that respect, I agree with them entirely. The more it creates interest in and understanding of Gaelic, and the more people realise the extent to which the Highlander should be on our conscience, the better, as far as I am concerned. I support the amendment.

Photo of Lord Sanderson of Bowden Lord Sanderson of Bowden Conservative

My Lords, I think there ought to be a bit of border solidarity here. I agree entirely with the noble Lord, Lord Steel, about the ability to have agreement north and south of the border on various matters relating to roads. For example, if you go through one village, as I do on my way to the train, there is a 30mph limit—that is in England, of course—and in Scotland it is 40mph. In the context of this amendment, which I agree with, we want to be sure that any changes that are made should ensure that it is not going to be too difficult for us to cross the border.

Photo of Lord Empey Lord Empey UUP

My Lords, I was somewhat amused by the views of the noble Lord, Lord Foulkes of Cumnock, because road signage is something with which we are all too familiar, unfortunately. We have one little twist in the tale for the noble Lord. We have a system whereby a Minister who happens to hold the relevant portfolio for traffic signs will put the signs up in both languages—indeed, some of them are up in three languages, if you include Ulster Scots—but when there is a change, the new Minister will take them down.

Photo of Lord Berkeley Lord Berkeley Labour

My Lords, perhaps we need an amendment stating that all road signs about broken pavements should be in two languages.

To return to the issue of broken pavements, I thought that the noble Lord, Lord Lyell, was beginning to imply that there were not many pavements in Scotland and you had to walk on the muddy verges or get splashed by cars. I do not think he meant that. There are just as many muddy roads in England, Wales and everywhere else as there are in Scotland, I am sure. There is an argument for saying that issues such as broken pavements and enforcement should be devolved locally. Why should we here decide on the legislation for parking offences such as causing a broken pavement or double parking? The incidence of it is just as bad in Scotland as in England.

I commend the amendment, and Living Streets for giving us some very good information on it. It is relevant that the consultation in Scotland received the fifth-highest number of responses of any Scottish Parliament Member’s Bill; 95% of responses were in favour of this parking legislation. That demonstrates a lot of interest in having the change proposed in the amendment. I see no reason why the local Edinburgh government should not be allowed to prohibit parking on footways and pavements and at dropped kerbs, and double parking of vehicles. Clarification is needed of what the offences are and who should enforce them.

There is a similar issue in England and the situation is awful, actually. We have had many debates about what enforcement is carried out for various alleged crimes. It is like the PCSOs, who are allowed to fine bicycles for going through stop lines but are not allowed to fine cars. They are all going through stop lines—what is the difference? It would be nice if one day, the UK Department for Transport got on to this but in the mean time, I cannot see any reason why the Scottish Government should not be responsible for these local issues.

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

My Lords, first, I pay tribute to the noble Lord, Lord Foulkes, for his ingenuity in taking the debate in a different direction from the one I was expecting and on which I have been briefed. In social media Twitter-speak, road signs are trending in the House of Lords.

Returning, with the House’s indulgence, to the new clause proposed in Amendment 53, introduced by the noble and learned Lord, Lord Davidson, this seeks to address questions that have been raised about the Scottish Parliament’s ability to tackle the issue of inconsiderate parking on pavements. This issue was raised by the shadow Secretary of State for Scotland, the Member for Edinburgh South, who was at the Bar earlier to listen to the debate. He tabled an amendment in the other place, which has been re-tabled for consideration by this House.

It is clear, as the noble and learned Lord, Lord Davidson, said, that this is a matter of great concern to many people, including people with disabilities, as well as the elderly and parents with pushchairs, who can find their way blocked by vehicles parked without due consideration for others who require access to the pavement.

Your Lordships may be aware that this is a complicated issue for which the devolution settlement has not been clear. There have been a number of attempts to bring legislation forward in the Scottish Parliament to tackle this, but they have not succeeded due to doubts over the legal competence of the Scottish Parliament in this area. In September 2014 the former Member for Edinburgh North and Leith, Mark Lazarowicz, tabled a Private Member’s Bill in the Commons to attempt to address this issue. At the time, the Government gave assurances that we would do what we could to address it, although we explained that the Scottish Government would need to be clear about what measures and powers they would support.

To that end the Secretary of State, who was then in his capacity as Parliamentary Under-Secretary, wrote to the Scottish Government in December 2014 seeking their views. Since then he has remained committed to resolving this issue, which I know is an important one for many people. We need to ensure that there is clarity and that the Scottish Parliament has the necessary powers. To try to resolve this issue, the Secretary of State wrote to Derek Mackay, the Scottish Transport Minister, in June 2015 to ask that he engage with us to work out how to take matters forward. UK Government and Scottish Government officials have been working to address the detail of this complex issue. This Government remain committed to resolving it, and I reassure your Lordships that we are discussing possible solutions with the Scottish Government. We are making progress but, as I have said, this is a complex area of law and we want to make sure that we get it right.

In response to the noble and learned Lord, Lord Davidson, both Governments will of course ensure that we engage with the appropriate and relevant groups on this matter. If it proves possible to conclude the discussion on the detail shortly, the Government will consider an amendment to the Bill. We will, however, continue to look at all avenues by which this can be achieved, and I will be happy to provide this House with an update on progress at Report.

It is not clear that the amendment we are discussing would amend the law in a way that would address the issue. On that basis, I do not believe that it represents the best way forward but I again reassure your Lordships that we are working to resolve this as quickly as possible. Given that we are discussing this issue with the Scottish Government, and given our expressed preference to resolve it, I urge the noble and learned Lord to withdraw his amendment.

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Shadow Spokesperson (Treasury), Shadow Advocate-General for Scotland 6:00 pm, 19th January 2016

I thank the Minister for his reply. I would observe, however, that the noble Lord, Lord Steel, made a good point about the temptation within the Scottish Parliament to legislate difference for difference’s sake. One trusts that as the Scottish Parliament matures, it will resist that temptation. When it comes to resisting temptations, I will resist that to involve myself in the discussion either of Gaelic or the B955, and accordingly I seek leave to withdraw the amendment.

Amendment 53 withdrawn.

Schedule 2 agreed.

Clause 42: Policing of railways and railway property

Amendment 53A

Moved by Lord Empey

53A: Clause 42, page 45, line 44, after “property” insert “; but this exception does not apply in relation to the abolition or dissolution of the British Transport Police”

Photo of Lord Empey Lord Empey UUP

My Lords, before I commence, perhaps I could just follow up on a serious note the point made in the last discussion. I think that we are all in favour of the promotion of minority languages, but the danger we have seen is that a genuine love of a language has been seized upon and used as a badge of difference. That is the risk attached to all these things.

I tabled this probing amendment because I was slightly puzzled and concerned at the potential direction of travel that could be achieved by the outworkings of this clause. First, as I understand the Bill at present, it does not in and of itself alter the existing arrangements for policing railways and transport as set out, but it provides the potential for a subsequent point at which the Scottish Parliament and Government could take over responsibility for the functions of the British Transport Police, its chief constable and senior officers and of course for its equivalent of a police authority. We all know that we live in dangerous times; I just wonder whether we are trying to fix a problem that does not exist here.

I am not aware of there being a series of complaints about the conduct of the policing of transport in Scotland. As far as I can see from the figures, the police are bearing down well on crime—crime on railways, as I understand it, is diminishing in Scotland—but there are two or three areas that would concern me. First, where policing functions are devolved to the Scottish Parliament, it is natural that there will be an interest in all matters pertaining to police, but I think we would have to acknowledge that transport policing is not a geographically based function. Indeed, it is the very opposite of that, and a specialist series of skill sets are required to perform its functions. One of the most significant of those skills is of course counterterrorism, because transport links are used regularly by terrorists to carry out their activities. Sadly, we have seen in the last few months in Belgium and France, as we saw previously in Spain and other countries, attempts being made to use the transport network to promote terrorism. So people who have an expertise in that area and are used to dealing with it in transport terms have certain skills.

Sadly, another thing that has happened is that transport networks have attracted people who have sought to end their lives. That can also cause huge distress and great disruption. We also know that people traffickers and other elements use transport networks to fulfil their functions and carry out their nefarious activities. I am a little concerned that here we have a service that is being performed and, as far as I can see, performed well. I am not aware of complaints about the operation of the British Transport Police, as they apply to Scotland. We can also tell that when certain crimes are committed, the precise jurisdiction in which they are carried out can be unclear. We are talking about a border which is not immediately obvious to a passenger.

I would also like the Minister to tell the Committee whether, in the circumstances where the Scottish Parliament decided to take over responsibility, would a British Transport Police officer have the power of a constable in Scotland? Would that person be able to function on the Scottish side of the border, in circumstances where Police Scotland would be the authority in charge and responsible? Is there not the potential for huge confusion here? It is important that the Committee teases this out at this stage so that when we come to Report and so on, we have clarity. Are we trying to fix a problem that does not exist?

There is a unique skill set in policing not only the railway network itself but the stations and associated estate that go with it. It is difficult for a service that has existed for many decades, and built up that expertise, all of a sudden to transfer that expertise to a geographically based police service that quite naturally thinks and deals with things in a totally different way. Given also that we are talking about a GB-wide network which respects no border—in so far as railways, in particular, pass through borders without any distinction between one area and another—surely there is some sense in having consistent and coherent policing of that network.

That is not to say that the Government and Parliament in Scotland would wish to exclude themselves from any interest in these matters—of course they would be interested, and quite rightly so—but what purpose is being served by this if there is no evidence that a problem actually exists? If there is no evidence that crimes are going undetected or that there is a major failure here that needs to be addressed, I would just be concerned, as we had some experience of this in our own jurisdiction. We had to wait for over three years before we could get political agreement to get the National Crime Agency going in Northern Ireland because people had a political issue with it—not a policing issue with the NCA but a political one. In circumstances that included people trafficking, smuggling and potential terrorists coming and using our area as a backdoor into the United Kingdom, it was not the policing issue that was at the top of the agenda.

Why has this particular issue been given such prominence? It is inconceivable that proceeding to change and hand over these functions to Police Scotland would have no potential effect on the United Kingdom. This is not something that has no implications for the rest of us, for the following, simple reason. If criminals originate on the Scottish side of the border, what are the co-operation and communication issues going to be? Are we suggesting that a Scottish police constable would be on the train as it left Scotland, and does that mean that there has to be a British Transport Police officer when it gets to Cumbria in charge of an investigation or tracking a criminal or a criminal gang? These are the sorts of questions that we have to ask, and this Committee is the right place to ask them.

Virtually all parties are committed to the implementation of the Smith commission, and I am not in any way trying to stand in its way, but where there is an issue which could affect all of us, it is fair to say that we are perfectly entitled in this Parliament to ask these questions and to seek explanations. I beg to move.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I rise to support the amendment of the noble Lord, Lord Empey, as this is a crucial proposal in the Bill. The origins of it were in the Smith commission’s report, following which the Government said:

“How rail transport is policed in Scotland will be a matter for Scotland once the legislation is passed”.

I noted that last year Scotland’s Justice Minister said:

“It’s been the Scottish government’s view that this would be better if it was integrated into Police Scotland given that it would sit alongside our national police service”.

At one time, we had local police forces which commanded respect and were extremely efficient, and a system that worked very well in Scotland. My old constituency in Stirling, where I live, had the Central Scotland Police, which was the smallest in Scotland; there was also a Highlands police force. Those forces were able to deal with issues while understanding the culture, background and nature of the areas to which they were responsible. That worked extremely well, but the system has been smashed up with the creation of this national Police Scotland force. It was going to save a lot of money, but the result has been a complete disaster. We lost the first chief constable in a series of controversies over arming the police, the inefficiency of the service and various other matters. We have seen infighting and disruption in the governance body responsible for Police Scotland, with the resignation of the chairman. The whole thing has been a disaster from every point of view.

In my view, it is a matter of constitutional concern that we now have one policeman in charge of the whole of Scotland, reporting to the First Minister and the Scottish Government, rather than the diversity which we had before, which provided a safety valve and security for operational independence. I know for a fact that, certainly under the previous First Minister, the temptation to get involved in operational matters was not always resisted, which is a disgrace. Talk to any policeman in Scotland and they will tell you that morale in the police force is at an all-time low. I remember Scotland’s police force as being well respected and in touch. We had none of this. It has come about from ill thought out reorganisation.

Clearly, we cannot unwind the clock and set back what has been done. It is obviously of great importance that the new chief constable is given every support and encouragement to try to bring about the changes that are necessary, so that we do not have the kind of appalling circumstances which we had in Stirling, where someone lay by the side of a motorway for three days after their accident had been reported, or with the elderly lady who went missing in Glasgow, where there were failures of communication. Worst of all, the people at the top then picked on some person way down the line, trying to pin the blame on them for a botched reorganisation with disastrous consequences.

Photo of Lord McFall of Alcluith Lord McFall of Alcluith Labour 6:15 pm, 19th January 2016

Does the noble Lord not agree that one of the real problems a number of years ago was when they got rid of the local police stations and introduced a centralised call centre? Now you phone a central place in Scotland, which is unaware of the locality and the issues in it, and where there are complications with communications. I saw that when I was a Member along the road there. That was the start of the real problem, which led to this centralisation. The more we get back to local police stations and local reporting, so that we can go into our stations and report issues where they understand the local area, the better. We are on the wrong track.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I entirely agree with the noble Lord. He is absolutely right. In my old constituency of Stirling, we used to have a police station in my own village; we had them in Balfron and elsewhere, but they have all disappeared. We now have two wildlife policemen who are going around trying to find someone to prosecute for something—without much success, I am told, and at vast expense. All of this is absolutely in the face of what local people say they want, which is local policing and local involvement. One of the great ironies of this whole devolution project is that it was supposed to be about returning power to local people, but the Scottish Parliament seems to have been absolutely concerned to centralise everything and to take a very authoritarian view.

This proposal to break up the British Transport Police —I am now on the amendment—is an absolute classic example of the failure of thinking which has brought such disaster to Scotland’s police force. British Transport Police has been there certainly since the 1850s, when it was realised that a railway would enable criminals to move around the country and that it was necessary to have a police force on the trains with the authority to act wherever its officers were. That system has worked brilliantly; it is one of the great success stories.

The truth of the matter is that the reason that the nationalists do not want to have the British Transport Police is because of the “B” in British Transport Police. Perhaps we could just call it something else—perhaps we could call it the “National Transport Police” —and then we could get agreement that it makes sense to have a cross-border force run on a cross-border basis. It has done the most brilliant work, not all of it publicised for obvious reasons, on drugs hauls that have been taken from trains at Glasgow that have come from the south, on the movement of terrorists and others who threaten us, and on the integration of the Glasgow underground with the London Underground and the whole of the transport system. The BTP is a group of people organised in four divisions—there is a Scottish division—who understand and have the expertise to deal with the intricacies of policing a transport system. That is a success, and for it to be smashed up would be crazy.

I know that the Minister will say that the amendment is unnecessary and the clause does not actually provide for the breaking up of the British Transport Police, but we know that that is what the Scottish Government intend to do. In doing so, they will undermine not just the security of people in Scotland, as the noble Lord, Lord Empey, said, but the security and enforcement of law in the United Kingdom as a whole. This is not a matter which should be subject to devolution; this is a matter of national, United Kingdom interest. I very much hope that the Government will drop it from the Bill. The rather throw-away line that we got from the Smith commission, which showed no understanding of what the British Transport Police has been doing, is, to say the least, a disappointment.

The fact that the Justice Minister in Scotland should announce that he wanted to get rid of the British Transport Police and integrate it into the Scottish police with no consultation whatsoever, and in the face of strong opposition from former commanders in Scotland, who actually did the job, but who are ignored, is unacceptable. I very much hope that the Government will feel able to accept the noble Lord’s amendment or, even better, drop the whole thing altogether.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords

My Lords, my noble friend Lord Stephen and I tabled clause stand part debates on Clauses 42 and 43 because it is important that the Government should justify to the Committee why they are taking this step, not least given the remarks of the noble Lords, Lord Empey and Lord Forsyth. After all, I am told that the British Transport Police has reduced crime on Scotland’s rail network by 56% since 2005, compared to an overall reduction of crime in Scotland of 38%, so it is clearly doing something right.

Paragraph 67 of the Smith commission report states:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

That is a slightly different thing from saying that the British Transport Police shall be devolved. We really ought to have an explanation from the Government as to why they have chosen this form of devolution. It is complex. No doubt the Minister will give a fuller explanation, but until legislative competence has been devolved, which is what I understand Clause 42 is intended to do, the Scottish Parliament cannot make provision for what will happen and the British Transport Police will continue as a cross-border public authority under Section 88 of the Scotland Act 1998. The Minister may want to indicate what that means in practice. Does it mean more than that UK Ministers are obliged to consult about appointments and the like and that reports must be laid before both the UK Parliament and the Scottish Parliament?

The Scotland Office briefing note that was given to noble Lords at a very worthwhile briefing way back in November said that this was a first step. We want to know what the next step and subsequent steps will be. Considerable concern has been expressed about this provision.

It is no secret that I am a pretty strong home ruler, but I cannot say that the devolution of the British Transport Police was ever near the top of my agenda of things that needed to be devolved. One wonders where it came from. Perhaps the secret is in what the Scottish Justice Minister said, in what sounds very much like empire-building, whether on his part or that of Police Scotland, to try to subsume the British Transport Police. That is the concern: that the British Transport Police is to be subsumed into Police Scotland. As the noble Lord, Lord Forsyth, indicated, Police Scotland seems to have enough on its plate at present, although I agree with him that the new chief constable must be given the opportunity to try to restore both morale in his force and confidence in the public.

The speech of the noble Lord, Lord Forsyth, was very passionate, raising the constitutional issues of having a single national police force. I just wish that he had spoken to the Conservative Party in the Scottish Parliament—and that the Labour Party in the Scottish Parliament had taken cognizance—because the Liberal Democrats were the only party in the Scottish Parliament that stood against the creation of a national police force.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I did, but, for extraordinary reasons, it decided not to take my advice.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords

Plus ça change, plus c’est la même chose.

I am uncomfortable about the arguments about what might happen when devolution takes place—that is an argument for a different forum—but clearly, devolution is not the same as abolition. As I said, the Smith commission said that it should be the functions of the British Transport Police that are devolved. The British Transport Police Federation made a submission to the Scottish Parliament’s Devolution (Further Powers) Committee in which it set out a number of options.

One option consisted of proposals of a legislative administrative nature, which would devolve policing and embody in statute arrangements by which the Scottish Government could give direction to the BTPA and specify direction of railway policing, but the model would provide that the chief constable of the British Transport Police would engage with Scottish institutions in the same way as the chief constable of Police Scotland does at the moment. Responsibility for pensions, employment contracts and defraying the cost of policing to the rail industry would remain with the British Transport Police Authority, although the Scottish Police Authority would have great involvement at strategic and planning level. Another option was to achieve devolution by administrative rather than legislative means, maintaining the responsibility on the BTPA to pass on the cost of the force to the rail industry, as well as responsibility over employment matters and pensions.

The Government owe the Committee an explanation of why they adopted this particular form of devolution, given that it was the functions of the British Transport Police rather than the police themselves that the Smith commission recommended be devolved.

We should not lose sight of what the British Transport Police is and what it brings to the service. Interestingly enough, it is not responsible to the Home Office; its sponsoring ministry is the Department for Transport. That is important. It means that it has particular training and skills which are different from the rest of the police force. Can we be assured that in any scheme for transfer, particular provision will be made to maintain those skills—for example, dealing with level crossing incidents and trespass? We have heard about drugs and terrorism—although I know that those who work within Police Scotland in liaison with the Metropolitan Police and others are very important. The noble Lord, Lord Empey, mentioned investigations of suicides—the tragedies that happen on our rail network.

The briefing made available to the Scottish Parliament committee stated that under Operation Avert, which is being promoted by the British Transport Police at the moment, there has been a 30% reduction in suicide attempts over the past year. That is very valuable, and we need reassurance from the Minister that will not be lost.

What engagement has there been with staff? I understand that there are about 50 civilian posts and 230 police officers with the British Transport Police in Scotland. They are not tied to the police pension scheme; there is a separate, private pension for British Transport Police officers. Will the provisions safeguard the employment and pension rights of serving officers? What are the financial implications?

The Scotland Office briefing states that the British Transport Police costs are met through charges for the policing services it provides. Will the secondary legislation allow for train companies to be charged? If so and there is an incorporation into Police Scotland, how can we ensure that charges made to railway companies will go to provide the services to the rail network and not just into a pot used to fund other policing services? It is important that we are given some reassurance that they will go to services relating to railways and railway properties.

The notion of cross-border institutions, which appears in the Scotland Act, is sometimes not fully understood. You can have a service and a function that literally is cross-border—that is, it operates in Scotland as well as England but is a reserved matter, not run by a cross-border authority. Here we have, as a result of Clause 43, something that is both; it will be cross-border institutionally and very literally cross-border in what it does. That point was well made by the noble Lord, Lord Empey.

An estimated 20 million passenger journeys started by people in Scotland go cross-border—so what will the relationship be if Police Scotland is to be responsible for trains north of the border and the British Transport Police remains responsible for what happens on the same trains when they cross the border at Gretna or just before or just after, depending on in which direction you are going, near Berwick-upon-Tweed? These are things that at the moment do not necessarily bother us, because the system works with a unified British Transport Police. When responsibility is divided, it will not be through malice or ill will, and no doubt there will be umpteen co-operation agreements—but when you have a divided force, the chances of something going wrong or someone slipping through the net must surely be enhanced.

The Minister has to indicate why this form of devolution was proposed and how he will address the many very serious concerns that have been expressed about how it might work out in practice.

Photo of Lord McCluskey Lord McCluskey Crossbench 6:30 pm, 19th January 2016

I spent more than 50 years in the criminal and civil Scottish courts, as an advocate and prosecutor and as a law officer and a judge, and I never had encountered any problem arising out from the British Transport Police. I support the point made by the noble Lord, Lord Empey, that there is no problem here to be dealt with. The second point simply relates to paragraph 67 of the Smith commission report, which, as the noble and learned Lord pointed out, refers to the functions of the British Transport Police and says that they will be a devolved matter. There is no reasoning whatever behind that; we do not know where it came from or where it was supported, even by the Liberal representatives on the Smith commission. I would be interested to hear from some of them what the reasoning behind that was, because it is not detectable from the Smith report.

Photo of Lord Sanderson of Bowden Lord Sanderson of Bowden Conservative

I, too, have grave concerns about this part of the Smith commission report, in paragraph 67, on the functions of the British police in Scotland being a devolved matter. We have heard from somebody from Northern Ireland on this whole question of security, which is so important. Why, if we have something that works as the British Transport Police does, do we change it? It is very dangerous to change it in this Bill—and I hope that my friend on the Front Bench will be able to give us a reasonable answer.

Photo of Lord Berkeley Lord Berkeley Labour

I wonder whether it would be useful to reflect on some of the things that the British Transport Police currently does. Like it or not—and most people like it—we have some very highly congested railways in this country. Sometimes the trains go very fast, and some of them are freight. Here I declare an interest as chairman of the Rail Freight Group. Some of the passenger ones go even faster. One thing that the BTP does is make sure that people do not trespass on the railway, be it in towns, countryside or whatever.

There have been one or two occasions when the local police force—I cannot say where—has trespassed on the railways and put their own lives and other people’s lives at risk by not knowing how the trains work. The BTP knows how the trains work.

There is the issue of suicides, as noble Lords have mentioned, and the issue of graffiti. None of us likes graffiti on trains. Where does the graffiti get put on? It gets put on in depots. Now depots are where the trains get parked when they are not used, and they are lovely places to go into because you can hide from people and probably not be seen. Most have fences around them, but some have electrified lines. People who do not know could hurt or kill themselves. The BTP is involved in all that. Then there is the question of passenger crowd control; we have all seen what happens when there is underground congestion, and they stop people going down there. London Underground does it all, but if there is beginning to be a problem and the police feel that they need to be there, they are there—and they know how to deal with crowds. Noble Lords have probably read about some of the issues facing London Underground at the moment, because of the growth in traffic. Wrong action by a policeman or policewoman who does not know the layout of Underground or mainline stations can put lives at risk, again—and that is the kind of knowledge that the British Transport Police has built up over the years. Level crossings and the deaths that happen there—that is another piece of knowledge that the BTP has.

It would be a great shame to lose this specialist knowledge. Railways are different from roads. Everybody knows what happens on roads, and how you try to avoid problems, and the police are very good at it. On railways it is different, and there is a different type of control because if a driver sees something he cannot stop, unless he is very lucky; he has signals but, if somebody is on the line, he cannot stop. That is going to get very nasty, because trains are not designed to stop on a penny.

Having a national force is highly desirable. I agree with all noble Lords who have spoken who have said that they cannot see any reason for changing it. But let us also look at frontiers. There have been problems in the past, which I am sure my noble friend Lord Faulkner will talk about. Can the BTP be in hot pursuit outside railway property? The noble Lord, Lord Empey, mentioned that. It has got better these days, but there is still a problem; there certainly will be a problem if there is a kind of frontier for police between Scotland and England. I travel a lot on the continent, usually on railway activities, and we have all seen the problems between France and Belgium and the apparent lack of communication between the police forces of those countries. The solution that they have come up with is to have police or security checks at all the stations approaching the frontiers. Heaven help us if we have that between Scotland and England; whatever happens in future, we need our trade and our passengers to get through. But the fact remains that, as other noble Lords have said, if there is a need to go across between England and Scotland it needs to be done in the easiest possible way and nobody should stop the expertise of the British Transport Police from being able to do it.

I personally see no reason why this is thought a good idea. The suggestion of the noble Lord, Lord Forsyth—that we should get rid of the word “British” and turn it into a national force—would probably be a good compromise. But I worry seriously whether the BTP’s expertise on railway matters, stretching from John O’Groats right down to Cornwall, would be affected in any way, with the result that the non-specialist police person, doing their best, gets into trouble on the railways in pursuit of whatever they are trying to do.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I was not suggesting that the name would be changed—I was saying that it might suit the nationalist agenda.

Photo of Lord Hope of Craighead Lord Hope of Craighead Convenor of the Crossbench Peers

When the Minister replies on Clause 43, could he give us some other examples of cross-border authorities? As I understand Clause 43, it does not abolish the British Transport Police or alter its functions in relation to Scotland; they will be devolved, if Clause 42 is passed. But it would help the Committee if we had some examples of other cross-border authorities, so we can grasp what kind of things we are dealing with. From points that other noble Lords have made, it may be that we are not really comparing like with like, in talking about the kind of cross-border authority referred to in the Scotland Act—or the Orders in Council passed under it, presumably under Section 88(5). They are relatively simple creatures, which do not have implications of the nature described by other noble Lords. But some examples of other cross-border authorities would help us to grasp the implications of this very significant clause. I hope I am not asking the Minister to do something for which he is not prepared, but if he could write to us and give us examples at a later stage, that would be very helpful.

Photo of Lord McKenzie of Luton Lord McKenzie of Luton Shadow Spokesperson (Work and Pensions)

This has been a remarkable debate, and I am sure that British Transport Police officers will be delighted by the degree of support expressed for them in all parts of the Committee, starting with the splendid speech from the noble Lord, Lord Empey, who was followed by the noble Lord, Lord Forsyth.

I shall correct one thing the noble Lord, Lord Forsyth, said. He said he thought the force had been around since the 1850s. That is not right. The force was started in 1825, in the earliest days of the railways. It predates a great many of our normal civil forces. The reason the railway police were formed in the first place was because criminals discovered that by getting on the new-fangled trains they were able to get away from the scene of the crime much quicker than they could by any other means. It was therefore necessary to have a force that was able to operate across county boundaries and country borders.

I find it extraordinary that this proposal to lose that ability should come forward now. I should remind your Lordships that breaking up the British Transport Police has been tried once before. It was done around the year 2000 by somebody called Ken Livingstone, who was Mayor of London. He was anxious to hand the duties of the British Transport Police over to the Metropolitan police force because he felt he had some control over it. The Government of the day, after some deliberation, decided that that was not a sensible thing to do and it was much more sensible to build on the skill and expertise of the British Transport Police; extend its jurisdiction, to which my noble friend Lord Berkeley referred, where necessary; give it, after some reluctance, the opportunity to arm a limited number of its officers, which it had asked for; and, above all, encourage it on what it did really well, such as combating scrap metal theft. The BTP led the government task force on that subject and made a huge contribution to reducing the incidence of metal theft after Parliament passed two important pieces of legislation which regulated that business.

Photo of Lord Berkeley Lord Berkeley Labour

My noble friend is too modest to say that he led that legislation through Parliament.

Photo of Lord McKenzie of Luton Lord McKenzie of Luton Shadow Spokesperson (Work and Pensions)

That is very kind of my noble friend, but I do not think it matters who claims credit for what. What matters is that the outcome of those deliberations was an improvement in the situation in which the British Transport Police played a crucial role. I find it utterly inexplicable that these two clauses are in the Bill. I am sure that in due course they will give the Scottish Parliament with a nationalist majority the opportunity, effectively, to nationalise the BTP in Scotland. It would be a terrible mistake, and I hope the Minister will agree to come back on Report and have these clauses removed from the Bill.

Photo of The Earl of Kinnoull The Earl of Kinnoull Crossbench

My Lords, my interest in this was sparked by a conversation with an SNP MP in December in a passageway in the other place. I asked him whether he thought Police Scotland was ready for the British Transport Police, to which he answered that he was sure there would be some teething problems. I find that very worrying because teething problems essentially mean damage to the citizens of the UK, either because some young lady has been thumped or because drug smugglers or terrorists have got through.

In my commercial career, I spent more than 10 years as the director of mergers and acquisitions for a FTSE 250 company. Over Christmas, I thought about how complicated the demerger of the British Transport Police would be. I will not bore the Committee with a lot of what I thought, but I have done demergers as well as acquisitions, so I know. There would be TUPE, which would be horrible because there will be only one human resources department and one accounting department. There would be career progression problems for the existing staff because there would be a disproportionate number of chief superintendents one side of the border or the other. There would be only one training establishment for each type of training and there would be difficulties with that.

In particular, there is the thing that has caused me problems professionally throughout my career, which is everything to do with data. There would be an enormous discussion about who owns what data. Eventually there would be a decision on that, and then there would be enormous problems over the sharing of those data. Those problems would partially have been inserted by Parliament. All that would lead to an immense decrease in the effectiveness of the force. You would end up with two human resources departments, two IT departments and two sets of expensive management sitting on the top. You would not only have an enormous one-time cost, there would be continuing enormous additional costs and a decrease in effectiveness. That is a jolly bad result for citizens of the UK north and south of the border.

This is an area where the parties who turned up to the Smith discussions probably forgot that, although they were empowered to talk about things going to Scotland, they were not empowered to think about things that would potentially damage English members of our union.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative 6:45 pm, 19th January 2016

Is there not another complication: the fact that the financing comes from the operators? Who pays what would be an interesting discussion. The noble and learned Lord, Lord Wallace, made a point about how one would ring-fence the funds. That would be a good discussion.

Photo of The Earl of Kinnoull The Earl of Kinnoull Crossbench

It would be interesting and very lengthy. I thank the noble Lord for yet another item in the list. I am sure that if one sat down one could prepare a demerger list of horrible problems that would tax people for a very long time.

Earlier, we spoke about the Crown Estate and the fact that it appears that where the Smith agreement has got it wrong there is some wriggle room for making some small changes in the Bill. We came across a couple of them in the transposition from the Smith agreement to the provisions of the Bill that deal with the Crown Estate. I suggest to the Minister that this is another area where there could be some wriggle room. Alternatively, we could go for some sort of fudge with a dual reporting line so there would be a unitary, single British Transport Police with agreed rights of reporting, scrutiny et cetera that went to Scottish Ministers in respect of Scottish staff as well as to UK Ministers at the same time.

Photo of Lord Empey Lord Empey UUP

That was how our problem with the National Crime Agency was resolved: through reporting mechanisms. Our policing board would receive reports from the chief officers of the National Crime Agency. That is precisely the mechanism that was used, and that eventually got the consensus.

Photo of The Earl of Kinnoull The Earl of Kinnoull Crossbench

I am very grateful for that as well. In my commercial career, that option has sorted out a number other problems and is a very useful technique. I would be very interested to hear the Minister’s views on what I have just said and on everything that everyone has said in what has been a very interesting debate on this vital area.

Photo of Lord McAvoy Lord McAvoy Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Scotland), Opposition Deputy Chief Whip (Lords)

My Lords, I apologise to the Committee for not being able to be here for start of the proceedings. I was away officially on Whips’ business. I thank my noble and learned friend Lord Davidson of Glen Clova for holding the fort so well.

The Bill makes the functions of the British Transport Police a devolved matter. I associate myself with all the praise expressed for the British Transport Police and its record since 1825. I have no hesitation in doing so.

I have only one comment to make about the contribution by the noble Lord, Lord Empey. I fully understand where he is coming from; he is ad-libbing about the language situation in Northern Ireland. The situation is a wee bit more hopeful than he has perhaps indicated: there are classes in Irish in solid unionist east Belfast, so there are glimmers of hope.

In the opening contribution from the noble and learned Lord, Lord Wallace of Tankerness, he regretted and bemoaned that the Labour Party did not do what he wanted it to do in the Scottish Parliament. I can understand that disappointment and possible resentment, because the Labour Party here had to stand back and watch for five years as the Liberal Democrats backed every vicious and vindictive proposal on welfare put forward by a Conservative Government, with never a word against.

Clause 43 devolves executive competence in relation to the policing of railways in Scotland by specifying as a cross-border authority the British Transport Police Authority, the chief constable of the British Transport Police, the deputy chief constable of the British Transport Police and the assistant chief constable of the British Transport Police. This is in keeping with the Smith agreement, which states:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

That was agreed. I understand also the suspicion and resentment that some Scottish National Party people seem unfortunately to be expressing the desire to get rid of the word “British”. I regret that. If that is their motivation, it does not say much for them, and we should concentrate on the core of the matter.

Designating the British transport bodies as cross-border public authorities means that appointments to the British Transport Police Authority or to the offices of chief constable, deputy chief constable or assistant chief constable will in future be able to be made only in consultation with Scottish Ministers. I know I should not have to say this but it should be on the record: devolution is devolution. You cannot agree the principle of devolution and then object to its effects. Devolution is devolution.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

Yes, devolution is devolution, but, as was made clear earlier in the debate, this is a matter that affects the security of the whole of the United Kingdom. The noble Lord knows very well that the SNP Justice Minister has indicated that he wants to break up the British Transport Police. Is the opposition Front Bench really supporting this in the face of all the evidence that has come from the trade unions and the former leaders of the British Transport Police? Surely that is an extraordinary position for it to take.

Photo of Lord McAvoy Lord McAvoy Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Scotland), Opposition Deputy Chief Whip (Lords)

The noble Lord, Lord Forsyth of Drumlean, always takes a keen interest in the position of the Labour Front Bench. The fact is that the Labour Party supports the Smith commission, as do the Liberal Democrats and the Conservative Government.

There is consensus. I know the noble Lord does not really like being described as a consensual figure—he would probably regard it as an insult—but devolution is devolution and it can, will and should be worked out in that atmosphere. I know the noble Lord is a bit puzzled by that, but I have accepted devolution and he should do the same and move on.

In March last year, as the noble Lord has indicated, the Scottish Justice Secretary signalled the Scottish Government’s intention that the BTP’s functions would be transferred to Police Scotland following the passing of this Bill. Once the power is devolved to the Scottish Government, that is of course a decision for them to make and to justify to the Scottish public, the Scottish electorate and the communities within Scotland. Having said that, in recent months there have been a number of legitimate question marks over the way in which the Scottish Government have chosen to manage the resources of the police force in Scotland since we have had this Police Scotland set-up, with police stations being shut—as my noble friend Lord McFall of Alcluith has mentioned—call centres closed and much-needed front-line police doing back-office functions. I make it clear that this is no reflection of the phenomenal work that our police officers do on a daily basis. However, we should view this as a further opportunity, and I have no objection to it, at the very least to assess all the possible implications of a merger between Police Scotland and the British Transport Police.

Photo of Lord Berkeley Lord Berkeley Labour

If my noble friend is suggesting that it is Labour Party policy to devolve the British Transport Police, does the same apply to railways? I was not aware of that. Network Rail could be separate, of course; we could even have a separate gauge. I thought the whole idea was that we should actually have an integrated system.

Photo of Lord McAvoy Lord McAvoy Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Scotland), Opposition Deputy Chief Whip (Lords)

I thought I had all the trouble in front of me, but I have some behind me here as well.

Photo of Lord McAvoy Lord McAvoy Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Scotland), Opposition Deputy Chief Whip (Lords)

We will see about that. The facts of life are that the Labour Party is a democratic institution. We have arrived at support for devolution. The Smith commission worked very hard to come up with the answer to it, as much as possible, and that is what we support. Perhaps my noble friend Lord Berkeley will explain to me later the effects of this on the intricacies of gauges. It is funny, and I laugh as well, but we are dealing with a serious matter. The Labour Party supports devolution and all its consequences. At the end of the day, whether folk like it or not, it is ultimately the Scottish people who will decide. I trust the people. Sometimes that backfires on us, like last year, but I trust the Scottish people because I am a democrat and Scotland under devolution is a democracy.

Photo of Lord Empey Lord Empey UUP

I know that the noble Lord is a great supporter of devolution; he has indicated that on many occasions. I support it too. However, what we are talking about is not yet devolved, and that is quite a distinct difference. In many cases, where something has been devolved we can complain about how it has been operated, but this is not yet devolved, unless the Minister and the Government are treating the Smith commission as if it were a treaty—in other words, it is unamendable—in which case there is no point in bringing it here.

I understood that the function of Parliament was to examine legislation. While all the parties—unwisely, it seems to me—are basically supportive of the general principles here, there are specific issues. It is not simply the people of Scotland who will be affected by this; it is the rest of the people in Great Britain. That is why I believe there is a difference. If—with, one hopes, the maximum consensus—we can actually find something better, such as our compromise over the National Crime Agency, I would hope that the Labour Party would support that. I am not trying in any way to rubbish devolution. I know that the commitments were made, although I am quite sure that the noble Lord would have preferred if some of them had not been. Judging by his expression, I believe I am right there. Nevertheless we have a responsibility, and I think that this matter should be pursued.

Photo of Lord McAvoy Lord McAvoy Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Scotland), Opposition Deputy Chief Whip (Lords)

I thank the noble Lord, Lord Empey, for his contribution, but no one said that there should be no discussion. The facts of life are that in the House of Commons no one moved an amendment to the contrary. We did not move one. We have moved one here because we want more information about attitudes and, perhaps, information regarding discussions with the Scottish Government. None of the unionist parties in the Commons moved an amendment, nor did the Liberals; in fact no one did, so there must have been general acceptance in the Commons for the principle. No one said then that nothing should be changed from the Smith commission, though we will wait and see how that goes. Discussions will take place but I do not think they will make any progress. This idea has been thought through by the Smith commission and in the Commons, which is the supreme House of Parliament, and no one has seen fit to move the amendment, except us—to be fair, I think that the Liberals have come in for this reason as well—in order to get further discussion on it.

We share some of the concerns about the Scottish Government’s record on the single police force; we do not like it and have very grave doubts about it. However, there are strong views to take into account, including those of the British Transport Police, and in particular those of officers employed in Scotland, as well as the unions. Both have expressed concern about the implications for staff and passengers if these special policing skills were to be lost—and it would be wrong for that to happen.

However, from the outset we have made clear that at the very heart of our approach to the Bill is a commitment to ensure that we get the very best deal for people in Scotland. It is therefore vital that the same level of services and protections which have up to this point been in place while the Scottish public travel is maintained. We must all play our part, not just in a debate here to get a bit of attention but to scrutinise this to make sure that it goes ahead. We all have a role to play in this; the Scottish Government need to account to the people for their actions, and we here can help do that. These specialist services and expert knowledge of the British Transport Police must continue to have as strong a presence following the devolution settlement as they have today.

Finally, can I finally ask the Minister a question which I do not think anybody else has asked tonight? What discussions have he and his colleagues had with their counterparts in the Scottish Government to be assured that the changeover does not have the teething problems referred to by the noble Earl, Lord Kinnoull?

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland 7:00 pm, 19th January 2016

I thank your Lordships for what has been a set of powerful and knowledgeable contributions to this debate. Many of the points raised by noble Lords have great force. To address directly and upfront what the noble Lord, Lord McAvoy, asked, I can say that we meet regularly with Scottish Ministers—later this week the Secretary of State is meeting Deputy First Minister John Swinney—and these matters are obviously the subject of those meetings. I will ensure that the strong feelings that have been expressed in this House are conveyed to the Deputy First Minister and to other relevant Scottish Ministers.

The task of policing the railways in Great Britain is carried out by the British Transport Police, as has already been discussed, the priorities of which include tackling crime on the railways, minimising disruption to the railway as a result of crime or other incidents, and ensuring that passengers feel safe and secure on the network.

I was going to touch on history, but the noble Lord, Lord Faulkner, has already beaten me to it, and when it comes to railway or transport history I am very wary of tangling with him.

The BTP currently polices the national rail network in England, Scotland and Wales, as well as the London Underground and some other light rail networks. It operates under a divisional structure, comprising three geographically defined areas: Scotland, London and the south-east, and the remainder of England and Wales. Today a large proportion of the rail network in Scotland is self-contained and is currently policed by just over 200 BTP officers out of a total BTP staff of 3,000 officers.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords

The Minister said “other light rail networks”. Does the BTP have any responsibility for the Edinburgh trams?

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

That is a very good question to which I do not know the answer, but I will be very happy to clarify that point for the noble and learned Lord. Noble Lords have raised a range of important issues, and I will try to cover as many of these as I can in my response.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

Could my noble friend tell the House what he thinks is meant by the words in paragraph 67 of the Smith commission report:

“The functions of the British Transport Police in Scotland will be a devolved matter”?

I read them to mean that the British Transport Police will continue and that its functions will be subject to some kind of oversight by the Scottish Parliament, which is not what the Bill provides for. Does he have a different interpretation?

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

If my noble friend will let me continue, I hope to set out what our approach is here and address some of the points that were raised by the noble and learned Lord, Lord Wallace.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

Of course I want my noble friend to address the points that have been made, but could he just answer that point? The noble Lord speaking for the Opposition said that whatever the Smith commission report says is written in stone, but what is in the Smith commission is not consistent with that. Can my noble friend explain what he thinks the commission meant?

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

What the Smith commission meant is precisely what it said. If my noble friend will allow me to continue, I will expand upon that. To return to the point that was raised about the Edinburgh trams, I understand that they are not obviously policed by the BTP.

The Smith commission agreed that the functions of the BTP in Scotland should be a devolved matter and, as the noble Lord, Lord McAvoy, has already said, that was supported by all five of the political parties which took part in the commission, including the parties opposite. Clause 42 devolves legislative competence in relation to railway policing in Scotland to the Scottish Parliament by adding an exception to the Scotland Act 1998 for the policing of the railways and railway property. Clause 43 specifies the BTP bodies as cross-border public authorities. The designation of the BTP bodies as cross-border public authorities will result in functions relating to those bodies being modified so that future appointments to the BTP bodies will be made in consultation with Scottish Ministers. Other functions with regard to the BTP bodies will similarly be exercised in consultation with the Scottish Ministers unless their effect on Scotland would be wholly in relation to reserved matters.

The designation of the BTP bodies as cross-border public authorities is to ensure continuity before the Scottish Parliament legislates for policing of railways in Scotland. Enacting the clause will not impact on the current operational arrangements for policing of the railway. The BTP will continue to police the railways in Scotland until such time as a transfer of functions is effected. If and when the Scottish Parliament exercises the new legislative competence conferred by Clause 43, it would be necessary that the BTP bodies be designated cross-border public authorities so as to facilitate the appropriate transfer of BTP property, staff, liabilities and contracts in Scotland.

The noble and learned Lord, Lord Hope, asked for other examples of cross-border authorities; one that comes to mind is the Forestry Commission, although I will write to him with other examples.

Upon the completion of the transfer of policing of railway functions to the new Scottish model devised by the Scottish Government, the designation of the BTP bodies as cross-border public authorities will be removed and the BTP will exercise functions of policing for railways only for England and Wales.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords)

On that point, can the Minister describe to me what will happen with trains that travel between England and Scotland, of which there are hundreds a day? Does the policing of that train change at the border? Does the British Transport Police no longer have any responsibility for ensuring order on that train, and does it then have to rely on Police Scotland to do that?

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

We anticipate that the BTP will continue to have limited functions in that scenario; I will come on to address that later in my remarks.

Amendment 53A was tabled by the noble Lord, Lord Empey, who spoke with great authority from his Northern Ireland experience. Regardless of how the Scottish Government legislate with regard to railway policing, the British Transport Police and the British Transport Police Authority will continue to exist in England and Wales. There is no question of abolishing or dissolving the British Transport Police. We also anticipate, as I have just said, a limited but continuing role for the BTP in Scotland, particularly in relation to cross-border services—a point raised by the noble Lord, Lord Faulkner—working alongside the new Scottish model. There is already existing co-operation and collaboration between the BTP and Police Scotland. The BTP uses Police Scotland police stations, for example, and Police Scotland can be first responders to rail-related incidents. Inter-force co-operation will be one of the many important issues to be agreed between the UK and Scottish Governments before the BTP’s current role and function are changed. The need for this sort of collaboration between different police forces is not confined to railways; it happens every day in other fields.

It is the BTP’s Scottish division—its functions, staff and contracts—which would be transferred if the Scottish Government decided to implement a new operational model, and which would be legislated for by the Scottish Government once the necessary legislative competence had been provided through Clause 42 in order for us fully to deliver the Smith commission agreement.

The debate this evening has highlighted the complexities. Both Governments are aware of the complexities of such a transfer and of the need for close collaboration and engagement to work through the details. I reassure your Lordships that this work is already under way and we will keep the House informed as it progresses. The starting point is for the Scottish Government to determine the operating model and to legislate for future policing of the railways. The aim of both Governments, working together, is to ensure an orderly transfer of property, assets and liabilities. Clearly the UK Government will work to ensure continued co-operation during the transfer and afterwards to achieve the best possible outcome. Many of the issues raised by noble Lords this evening—in particular, the noble and learned Lord, Lord Wallace—will be determined as part of this process.

The need to maintain high levels of service should be at the forefront of any planning for an efficient and effective transfer of functions. As the noble Lord,

Lord Berkeley, mentioned, BTP officers have a wealth of knowledge and important skills, which it will be important to retain and ensure are reflected in any new Scottish structure. The expectation from the discussion we have had so far with the Scottish Government is that a specialist transport policing unit will be established within Police Scotland. The transfer of experienced officers from the BTP will help ensure that these valuable capabilities are appropriately shared, and we will continue working with the Scottish Government during this important period.

I note what my noble friend Lord Forsyth said about Police Scotland, but I make it clear that, as is consistent with the nature of devolution, it will be for the Scottish Parliament to legislate in relation to the policing of the railways in Scotland and for the Scottish Government to decide how they want the new structure to operate in practice. I think that this echoes what the noble Lord, Lord McAvoy, said. The Scottish Government will be held to account for that by the people of Scotland, as they are currently being held to account for the performance of Police Scotland. That is leading to a review of the governance of Police Scotland.

The noble Earl, Lord Kinnoull, talked of teething problems. The importance of getting this right, both for maintaining the standards of railway policing in Scotland and for preventing any adverse effect on the BTP regarding the rest of England and Wales, will not be overlooked. Given its importance, we expect the transfer of the BTP’s property rights and liabilities to take between two and three years.

The noble Lord, Lord Empey, raised an important practical point when he asked whether the BTP would have powers to operate and arrest in Scotland, should it need to follow a criminal across the border. It is a point that I am confident both Governments will discuss and on which they will agree an effective approach as part of the transfer and set-up of new collaborating arrangements so that criminals can effectively be pursued across the border.

I accept that the devil will be in the detail. However, there is no reason in principle why the high standards of railway policing in Scotland cannot continue under a devolved model, and the Government will continue to work with the Scottish Government to achieve this. For those reasons, I urge noble Lords not to press their opposition to the clause.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords

I raised a number of questions, one of which concerned funding. I know that the devil is in the detail but, from his discussions thus far with the Scottish Government, can the noble Lord give us some indication of the United Kingdom Government’s ideas regarding the funding arrangements that will be put in place?

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

As I have just said, this is about devolution to the Scottish Parliament. Following devolution—and this matter will form part of the discussions—it will be for the Scottish Parliament to determine what the charging arrangements will be. However, perhaps I may end on this point. Democratic accountability is absolutely key here. I do not think that the voters of Scotland would be very pleased if the Scottish Government, through the train operating companies, increased costs to the travelling public in Scotland. For all the reasons I have given, I urge noble Lords to agree to the clause.

Photo of Lord Berkeley Lord Berkeley Labour 7:15 pm, 19th January 2016

The noble Lord mentioned funding by the train operators. He will be aware that, as the noble Lord, Lord Sanderson, said earlier, 50% of the funding of the BTP UK-wide comes from Network Rail and the other 50% comes from the train operators roughly in proportion to their passenger miles. He said that Scottish train passengers would not want to pay for this, and that will mean that the BTP will have to be paid out of general Scottish financing rather than through the current arrangement. The consequence of that will be that the budget will be cut pretty quickly and everything will be integrated. I would also be interested in knowing how Network Rail’s contribution will be arranged. Is it legal and how will it be done? Will it be on the basis of track miles or something else? Those are the sorts of questions to be answered.

Photo of Lord McCluskey Lord McCluskey Crossbench

Perhaps the Minister would take a short question from me. Is he advising the Committee that Clauses 42 and 43 enact the provision contained in paragraph 67 of the Smith commission report and nothing else?

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

I am saying that these clauses provide the framework that allows us to go forward, but the Scottish Government have to decide what operating model they want for the policing of the railways in Scotland. I said that I anticipated that it would take two to three years before these functions were devolved, and that is because all sorts of contracts with third parties are involved here—the noble Earl, Lord Kinnoull, talked about pensions. I do not underestimate the complexity involved and I hope the Committee will understand if I do not have specific answers to all the questions; we will be working with the Scottish Government to clarify them over the next two to three years.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I do not understand why the Government are bringing proposals to this House which have not been thought through. It is no good saying, “Oh well, the Scottish Government will need to work this out over the next two years”. Does my noble friend not recognise that this matter affects the rest of the United Kingdom? This is about maintaining a perfectly adequate system of policing upon which the larger proportion of the population depends. My noble friend is a Minister in the United Kingdom Government. If he brings forward legislative changes, surely he has a responsibility to explain to us how they are going to affect the United Kingdom. It is a case of the tail wagging the dog if we say, “This is a matter for the Scottish Parliament to decide. You just pass the legislation and we’ll try to work something out”. Surely my noble friend can see that he is not responding to the points that have been made, which concern the security of the United Kingdom and England in particular.

At the beginning of his speech I asked him a specific question, which has been asked again by the noble and learned Lord. It was whether he thinks that these clauses provide for what is contained in the Smith commission report, which says simply:

“The functions of the British Transport Police in Scotland will be a devolved matter”.

It does not say that there will be legislative control over the British Transport Police or that the British Transport Police will be broken up and there will be a separate Scottish force—it does not say that at all. The noble Lord, Lord Empey, indicated earlier that it would be perfectly possible to give the devolved Parliament some involvement in the British Transport Police without breaking the BTP up.

The clauses we are being asked to support tonight are completely vague as to the outcome. Does my noble friend recognise that he has not responded to the debate and has not dealt with the fundamental question that is being put: what will happen to England and Wales and the rest of the country, and why is it necessary to break up a perfectly efficient organisation in order to meet the requirements of paragraph 67 of the Smith commission report? As the noble Lord, Lord Empey, said, the Smith commission report is not a treaty; it is advice to Parliament and we are discussing a Bill.

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

In answer to my noble friend, the function of the BTP is the policing of railways, which is the subject matter of these clauses and what we are devolving in this Bill. That is what the Smith report stated and we are committed to delivering that agreement.

Photo of Lord Berkeley Lord Berkeley Labour

Will the Minister answer the question that I put to him a few minutes ago, please, on the financing of the British Transport Police north of the border?

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

I did answer it, to the extent that there is a plethora of detail that lies behind this. However, it requires, as I said, the Scottish Government, in discussion with the UK Government, to specify what their operating model is. Until we have that, we cannot answer in a lot of detail. I come back to the fundamental point that we are devolving something, and it is for the Scottish Government and Parliament to decide how that will work within Scotland.

Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Liberal Democrat Leader in the House of Lords

On that point, and in reflecting on his answer to the noble Lord, Lord Berkeley, and his earlier answer to me, which he has just repeated, does that mean that the Scottish Parliament and Government could load up the charges on Network Rail, which is a pan-UK body, and would that therefore have implications for transport rail users in England and Wales, as well as in Scotland? Does he not think that that is a matter on which the United Kingdom Government should have a view?

Photo of Lord Berkeley of Knighton Lord Berkeley of Knighton Crossbench

Just before the Minister answers that question, and at the risk of throwing another Berkeley into the hat and confusing life still further, I have listened to the debate this evening and am confused by the point that the noble Lord, Lord Forsyth, wishes to clarify: how this will affect members of the United Kingdom. I do not really feel that I have got an answer to that. It seems to me that it will affect them, and I wonder what the

Minister feels about that. Although I understand it, the answer he gave does not quite elucidate the problem we have here.

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

I hesitate at this point in the evening to introduce the concept of no detriment, and I look forward to Committee day 3, when I am sure we will cover this in great detail. However, the UK Government absolutely have an interest in ensuring that whatever devolution takes place in this space does not cause detriment to the rest of the United Kingdom.

Photo of The Earl of Kinnoull The Earl of Kinnoull Crossbench

The noble Lord, Lord Empey, and I suggested that a solution to this could be a dual reporting structure. I would be happy to explain that afterwards, as I am sure the noble Lord would be. In view of the fact that three or four years of work is stretching before us, which sounds very expensive to me, it might be cheaper just to ask the opposite numbers at Holyrood at one of the forthcoming meetings in the next few weeks whether the pragmatic suggestion of going down the Empey/Kinnoull route might cut the mustard. If it does, it would be a heck of a lot cheaper and, I believe, much more effective. It is a free question. Will the Minister consider at least asking, to see whether they might accept this slightly different approach?

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland

I will certainly reflect on the points that have been raised in this passionate debate. No doubt we will return to this subject.

Photo of Lord Empey Lord Empey UUP

My Lords, the noble Lord, Lord Dunlop, is a very capable Minister but, throughout his contribution this evening, not even he has been able to offer one scintilla of rationale for doing this. There is no advantage to be gained; we all know that. It is an ideological path that people have set themselves on and we are dealing with the consequences of that. This is not the opportunity to elaborate on the point that the noble Earl, Lord Kinnoull, made. However, the solution we found was to have the police authority receive regular reports, including personal questioning, and to have responsibility for the actions that would be taken by the NCA in Northern Ireland, which would be answerable to the authority but ultimately under the control of the national Government. A solution can be found somewhere in there. As I said, it is not a matter of depriving the Scottish Parliament of any interest—of course it has an interest—but I feel that we should now proceed to Report. I hope that the Minister will wish to discuss the matter with some of us between now and then. In those circumstances, I beg leave to withdraw the amendment.

Amendment 53A withdrawn.

Clause 42 agreed.

Clause 43: British Transport Police: cross-border public authorities

Debate on whether Clause 43 should stand part of the Bill.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I had no intention of speaking on this matter or detaining the House, but I have to say to my noble friend that, in the light of the reply that we got, I feel that I should make a number of points, without repeating the arguments over and over again. It should be absolutely clear to my noble friend that there is feeling in all parts of the House that what is being proposed is neither consistent with the Smith commission proposals nor desirable in terms of the needs of the rest of the United Kingdom to have adequate security and proper policing of our transport systems, particularly for cross-border purposes.

During the debate on the amendment from the noble Lord, Lord Empey, my noble friend was asked to give examples of cross-border authorities. He suggested in his reply that the Forestry Commission was an example of a cross-border authority. I can think of others concerned with the regulation of nuclear activities in the United Kingdom, for example. I am very concerned that a precedent is being set here that devolution means that, in Scotland, it is possible for decisions to be taken and devolved that have implications for the rest of the united Kingdom and which we just have to go along with because the Smith commission recommended it or the Government’s interpretation of the Smith commission’s proposals are that this legislative provision should be made.

I have no objection whatsoever to a provision that enables the Scottish Government and the Scottish Parliament to have some involvement in the functions and governance of the British Transport Police, as the noble Lord, Lord Empey, suggested. Indeed, I think that that would be highly desirable, if only to end the thought that this is something that should be conducted on a national, individual basis between the constituent parts of the United Kingdom. The joy and glory of the British Transport Police—which after all has done pretty well for nearly 200 years, as I discovered during the course of the debate—is that it operates as a cross-border United Kingdom body.

I gently suggest to my noble friend that he gives some thought to this in the context of his responsibilities as a Minister of the United Kingdom and comes forward on Report with proposals that meet the need to involve the Scottish Government without actually resulting in the destruction of the British Transport Police or its powers and ability to operate in a cross-border way. If he does not do so, I for one will join those who wish to go through the Division Lobbies to substitute something else. That would be very unfortunate. At the moment, our only option is to take these clauses out of the Bill altogether. That would create a difficulty for the Minister and for the noble Lord, Lord McAvoy, who has become the chief protagonist of the idea that everything in the Smith commission report has the status, as the noble Lord, Lord Empey, said, of a treaty that cannot be changed because it was agreed between the Governments.

Photo of Lord McAvoy Lord McAvoy Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Scotland), Opposition Deputy Chief Whip (Lords) 7:30 pm, 19th January 2016

I made no such suggestion. If the noble Lord would stop looking astonished at every second word that I say, he may understand what I am saying. The Smith commission was a hard process where five parties took part. He is decrying and insulting the good faith of the people who arrived at that conclusion. They spent a long time on it and went into a lot of detail. I believe that they did that in good faith and he should stop denigrating the people involved. The proposal was put through that process and arrived at after long consideration, and I support it.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I am not denigrating anybody, but I gently remind the noble Lord that quite a few of those who took part in the process are no longer involved in parliamentary affairs. He says that it was agreed by all the parties, but none of the parties was consulted about this. This was a deal and a negotiation. I wager him a bottle of champagne that very few of the people involved in negotiations even knew that the British Transport Police was largely funded by the transport operators. I suggest that that is the case. The complexities involved would be unknown to them.

The noble Lord knows as well as I do that a problem was created after the referendum. People were desperate to find things to devolve. I can just see people saying, “Oh yes, the British Transport Police can be devolved”. The people concerned would not have had a clue about the intricacies of how the British Transport Police was funded. Perhaps the noble Lord is smarter than I am and perhaps he is aware of that, but as Secretary of State I was not aware of the detail of this until I discovered the need to look into it as a result of this amendment. I do not believe for a moment that those people acting in good faith knew the consequences of what was proposed.

Actually, the Smith commission does not require the Government to break up the British Transport Police or to act in the way that is provided in this clause. I ask my noble friend to think again please and perhaps talk to the Scottish Government. There is a compromise to be had that will meet the needs of both sides of the border and the needs of the country as a whole in respect of security—at a time when national security is absolutely at the top of the agenda and the security of our transport systems must be the number one issue of concern.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords)

Does the noble Lord agree that consultation of the sort that he just described, which I would warmly welcome seeing established, should also include members of the British Transport Police themselves, the British Transport Police Authority and the British Transport Police Federation, Network Rail, which funds the larger part of its operation and the train operating companies? There needs to be a proper discussion about the role of the British Transport Police in a devolved Scotland. That has not taken place at all so far.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

Indeed, that is why I am so distressed by my noble friend’s response and the fact that it has not. We appear to be operating on the basis that whatever is in the Smith commission report, as interpreted by the Scottish Government, is what we do, and nobody has thought through the consequences. I hope before we come to a later stage of the Bill that the noble Lord’s suggestion is taken on board and my noble friend comes back with something that we can support. It would be very unfortunate indeed if this House were put in a position where it had to vote against the clause.

The noble Lord, Lord McAvoy, entreats us all to be as positive and committed to this process as possible. He has a part to play by opening his eyes and thinking about the consequences of this for the rest of the United Kingdom. I very much hope that this clause will not stand part of the Bill.

Clause 43 agreed.

Clauses 44 to 48 agreed.

Clause 49: Gaming machines on licensed betting premises

Amendment 54

Moved by Lord Bruce of Bennachie

54: Clause 49, page 51, line 36, leave out from “authorised” to “(or”

Photo of Lord Bruce of Bennachie Lord Bruce of Bennachie Liberal Democrat

My Lords, I rise to move this amendment in the name of my noble friends, with apologies to the Committee. I have not taken part in deliberations on the Bill so far because when it was last before the House, I had not made my maiden speech. Noble Lords will, however, understand that I have a very direct interest in it as a former leader of my party in Scotland who negotiated some of the original agreements for the first Scotland Act and the creation of the Scottish Parliament.

These amendments relate to gaming regulations. They have been tabled to try to ensure that the Scottish Government have a clear line of responsibility and that there is no confusion between the two Governments. The first two, essentially, would ensure that the Scottish Government have the right to vary the number of gaming machines regardless of the stake they carry. As it stands, the Bill specifically relates to a stake of more than £10. Our concern is that we need to be able to ensure that there is a clear line of authority, that the Scottish Government have the right to regulate all gaming and that there is no confusion about that.

It is important to recognise where Clause 49 devolves, by way of an exception from the current reservation in Schedule 5 to the Scotland Act 1998, power to vary the number of gaming machines authorised by a betting premises licence granted by a licensing board in Scotland where the stake is more than £10. But the Smith commission specifically stated:

The Scottish Parliament will have the power to prevent the proliferation of Fixed-Odds Betting Terminals”.

The Committee will understand the pain and disastrous consequences that these machines have caused some people both north and south of the border. That legitimises the reason to ensure that the power exists to regulate them. These machines have been described as the crack cocaine of gambling because they are so addictive. It is possible for people to lose substantial sums in a very short time. It would be unfortunate if there were a diversion of power and authority, which the exception currently in the Bill seems to produce.

That is the first point. These two amendments would remove the limitation of £10 and give the authority to the Scottish Government to regulate and reduce the number of all machines, regardless of the size of the stake.

The second is the exception that basically denies the Scottish Government the right to regulate those licenses that have already been awarded. The current exemption states:

“The amendments made by this section do not apply in relation to a betting premises licence issued before the section comes into force”.

Once it becomes apparent that, under the new legislation, the Scottish Government have the power to regulate gaming machines but not to regulate those that were licensed before the power was granted, people in Scotland will likely regard that as a slightly untoward situation.

I appreciate that people will argue that there are difficulties associated with revoking licences that have previously been issued, but it seems to me that that is nevertheless a matter for the Scottish Government to determine in the future. They need to make a judgment as to whether there are any practical difficulties. Why should the current legislation deny the Scottish Government the right to make that decision?

Essentially, these amendments seek to give a power to the Scottish Government to regulate all gaming machines regardless of the stake, to do so in a way that enables them to limit the number of machines, and to be able to make changes to those that were licensed prior to the Act coming into force. On that basis, I commend these proposals and I beg to move.

Photo of Lord Davidson of Glen Clova Lord Davidson of Glen Clova Shadow Spokesperson (Treasury), Shadow Advocate-General for Scotland

I rise to speak to Amendments 55 and 57 in my name and that of my noble friend Lord McAvoy. The amendments would require licensing standards officers in Scotland to be recognised as authorised persons who may exercise inspection and enforcement functions under the Gambling Act 2005. In its submission to the Scottish Parliament’s Local Government and Regeneration Committee’s call for evidence to the inquiry into fixed-odds betting terminals carried out in August last year, the Law Society of Scotland outlined its concerns. Those concerns, previously raised with the Gambling Commission, are whether a licensing standards officer appointed under Section 14 of the Licensing (Scotland) Act 2005 has the power to carry out any of the enforcement activities under Part 15 of the Gambling Act 2005 in respect of both alcohol licensed premises and gambling licensed premises.

Unlike in England and Wales, the licensing authority in Scotland is the licensing board, which has no officers or employees. Licensing standards officers are officers of the local authority, not of the licensing board. This is confirmed in the Gambling Commission’s advice note on the role of authorised persons in Scotland and states that the enforcement powers contained in the Gambling Act cannot be exercised “as of right” by an LSO. As an authorised person, an LSO would be entitled to:

“Enter premises for the purposes of discovering whether facilities for gambling have been … provided, whether the premises are licensed for gambling and whether the terms and conditions of any licence are being complied with”.

In addition, LSOs would have powers to,

“inspect any part of the premises … to question any person on the premises; to require access to and copies of written or electronic records kept on the premises; to remove and retain items which may constitute or contain evidence”.

Additional legislative competence is being devolved to Scotland in this area, and therefore we suggest that it is vital that the Scottish Parliament is given all the necessary resources to manage these increased responsibilities. That, we say, is exactly what Amendment 55 does. The authority of licensing standards officers must be beyond any doubt, and that is what the amendment seeks to achieve.

Separately, I turn now to the issues raised by the noble Lord, Lord Bruce of Bennachie. In setting the £10 limit, we suggest that the Government have failed to meet the recommendations of the Smith commission. We would be keen to know why a £10 threshold has been set. Is it perhaps that the Government wish to roll out a similar policy across the whole of the UK? That may be understandable. However, not only do fixed-odds betting terminals with a stake of less than £10 remain the responsibility of the UK Government but, crucially, the maximum stake threshold does not cover other reserved matters such as the speed of play or the type of game being played. The existence of a threshold would allow addictive casino games to be placed in Scottish bookmakers without recourse to the Scottish Government. That is plainly of concern. What, we ask the Minister who is to reply, is the policy justification for this aspect in Scotland?

Responding to a question on this issue in the other place, the Secretary of State for Scotland said that he was “reflecting” on it. At what stage are those reflections, and might the Minister explain how the Government’s proposals are in keeping with the Smith commission’s recommendation that the Scottish Parliament be empowered to prevent the spread of fixed-odds betting terminals? I look forward to his response.

Photo of Lord Dunlop Lord Dunlop The Parliamentary Under-Secretary of State for Scotland 7:45 pm, 19th January 2016

My Lords, perhaps I may set the scene for Clause 49, which refers to gaming machines in licensed betting premises. The provision will give the Scottish Parliament the power to vary the number of high- stakes gaming machines permitted by betting premises licences in Scotland. This power applies to all gaming machines on which players can stake more than £10 per play, which was referred to by the noble and learned Lord, Lord Davidson. At present this is possible on sub-category B2 gaming machines only. These are the machines that are widely referred to as fixed-odds betting terminals. Further, the power conferred by the Gambling Act 2005 on the Secretary of State to vary the number of such machines permitted by new betting premises licences will be transferred to Scottish Ministers.

FOBT machines are located almost exclusively in high street betting shops, and it is these machines with a maximum stake of £100 and a maximum prize of £500 on which recent public interest and debate have centred. This implements paragraph 74 of the Smith commission report which was explicit in saying that the Scottish Parliament should have,

“the power to prevent the proliferation of Fixed-Odds Betting Terminals”,

and this clause achieves that.

The Smith commission agreement was explicit in saying that the Scottish Parliament should be able to exercise new functions under the Gambling Act 2005 to increase or decrease the number of FOBTs which are authorised by new betting premises licences. The power is sufficiently broad to permit the Scottish Parliament or Scottish Ministers to reduce the number of FOBTs authorised to zero in a new betting licence. The Scottish Parliament will be able to prevent increases in the number of FOBTs created by the opening of new betting premises, as Smith proposed. Gambling and its impact on society is a topic which the Government understand and take seriously, and we remain alert to the changing dynamics of the wider debate and will act in this area as appropriate.

I turn to Amendments 54 and 56, which seek to extend the scope of gaming machines covered by the clause. These proposals go substantially further than what the Smith commission referred to. They would bring within the scope of the clause all gaming machines regardless of stake size. At present, a betting premises licence issued under the Gambling Act 2005 authorises its holder to make up to four gaming machines available for use. The Categories of Gaming Machine Regulations 2007 provide that this entitlement is limited to gaming machines which fall within sub-categories B2, B3 and B4 and categories C and D. The Smith commission agreement relates only to FOBTs, and the term FOBT cannot be found in the Gambling Act 2005, but it is commonly used to describe category B2 machines by the Government as well as the Scottish Parliament’s Local Government and Regeneration Committee. The Smith commission’s use of the term FOBT is not shorthand for all gaming machines. FOBT machines are located almost exclusively in high street betting shops, and it is on those machines that the recent debate has centred. As such, the Government consider that the intentions of the Smith commission agreement have been delivered and that it is unnecessary to bring other gaming machines, which have far lower stakes and prizes, within the scope of this clause.

I am grateful for the contribution that was made on Amendment 58. As I have said, the Smith commission sought powers to prevent the proliferation of FOBTs, and the Government have interpreted this to mean the ability to restrain any future increase in the number, thus preventing proliferation—and hence the focus on new licences. Amendment 58 would extend this power to include existing licences as well as new ones. In conjunction with the extensive planning powers which have already been devolved, the clause as drafted will give the Scottish Parliament sufficient levers to tackle high street gambling and the extent of FOBT terminals, as Smith envisaged and which is the focus of public debate. The Government’s approach is appropriate and therefore I hope that the amendment will not be pressed.

The noble and learned Lord, Lord Davidson, proposed Amendments 55 and 57, which would allow the Scottish Parliament to include licensing standards officers in Scotland as authorised persons who may exercise inspection and enforcement functions under the Gambling Act 2005. There is already a well-used and straightforward mechanism in Scotland whereby licensing standards officers may be authorised persons for the purposes of the inspection and enforcement of functions under the Gambling Act 2005. The Gambling Commission has very helpfully issued guidance on this. Local authorities are already responsible for determining how their existing officers discharge their duties. Clause 49 does not change that. As such, we consider that the amendments are not necessary.

Again, I urge the noble Lord to withdraw his amendment.

Photo of Lord Bruce of Bennachie Lord Bruce of Bennachie Liberal Democrat

I am grateful to the Minister. As he will know, these amendments were proposed by the Law Society. While his response has made clear that he believes, in accordance with the Smith commission, that it is giving the power to regulate new licences for high-value machines, it creates a dilemma, which means that some machines in Scotland will be regulated by the Scottish Government and others would still be regulated by the UK Government. Would it not be more sensible to have a single Government, the Scottish Government, responsible for the regulation of all machines rather than have certain machines over which the Scottish Government have power and others which remain with the United Kingdom Government, causing potential confusion and future conflict?

That was the purpose of the amendment. All I ask of the Minister is that he reflects on the fact that, while I understand the reasonings for the amendments—I am happy to withdrawn mine on that basis—he should recognise that this could create an anomaly in the future which might require him to come back with future legislation. There is some logic in doing it all in one rather than having to come back on another date. I beg leave to withdraw the amendment.

Amendment 54 withdrawn.

Amendments 55 to 58 not moved.

Clause 49 agreed.

Clause 50 agreed.

House resumed. Committee to begin again not before 8.52 pm.