[1st Allocated Day]
Considered in Committee.
[Dawn Primarolo in the Chair]
Administration of elections
I beg to move amendment 10, page 1, line 22, at end insert—
‘(3A) After subsection (2) there is inserted—
(2A) The first order made by Scottish Ministers under subsection (1)(a) must include the application to Scottish Parliamentary general elections of the terms of paragraph (3A) of Rule 45 (the count) and Rule 53ZA (counting of votes: statement by returning officer) in Schedule 1 to the Representation of the People Act 1983.”’.
With this it will be convenient to discuss the following:
Clause stand part.
Government amendment 29.
New clause 5—Administration of elections—
‘(1) In Part 1 of Schedule 4 to the Act (enactments protected from modification by the Parliament), in paragraph 4(2) after “1(4)”, there is inserted “12”.
(2) In Part 2 of Schedule 5 to the Act (reserved matters: specific reservations), in Section B3 (elections) the words “the European Parliament and the Parliament” are omitted and the words “and the European Parliament” are inserted.’.
It is a pleasure to serve under your chairmanship, Ms Primarolo, as we embark on the Committee stage of the Scotland Bill. Since we last debated the issues on Second Reading, the legislative consent motion Committee has made its report to the Scottish Parliament, which we received last week. I understand that it will be debated by the Scottish Parliament later this week. There is also the ongoing scrutiny of these matters by the Select Committee on Scottish Affairs, to which the Secretary of State and others have given evidence. We are part of the way down the road, but there is still some way to go.
It is right that our scrutiny is done thoroughly and with care, and that the issues are properly raised and discussed, particularly in the Committee stage on which we have embarked. I am sure that many Members will wish to press their points on different aspects of the Bill. For our part, we have tabled a number of amendments, of which amendment 10 is the first. Some are designed to tease out detailed consideration to which the Minister might wish to respond further today or on Report, while we intend to press other amendments to the vote.
I would like to say at the outset how grateful we are for the assistance and discussion we have had with a wide range of interested parties and individuals over the past few weeks as we have sought to scrutinise the Bill. We are also grateful for the Secretary of State’s confirmation—after some reasoned but pointed business questions in recent weeks, which also ensured that the Leader of the House had a fuller understanding of the Holyrood legislative process than he otherwise would—that the Government will not move forward to Report until the LCM process in Holyrood has been completed. We also note the Secretary of State’s confirmation that while he will wish to reflect on the content of the initial LCM Committee report—and, presumably, the motion that accompanies it—he will not necessarily be bound by it, which is a point he recently made at the Scottish Affairs Committee inquiry. The LCM Committee made a number of observations and recommendations, and I am sure the whole House—well, at least some of it—will look forward to hearing the Government’s response to those points.
It is part of the responsibility of Members to press on particular aspects of the Bill. There are strongly held views on both sides of the House on some aspects of devolution, but it is important to endeavour to continue our scrutiny of what the Secretary of State himself has proclaimed to be the most significant development in constitutional arrangements since the Scotland Act 1998. Our reference point, as always, because of its shared, cross-party status, is the report of the Calman commission, which hon. Members know led to an earlier White Paper before the general election and, subsequently, to this Bill.
Clause 1 deals with the administration of elections, which Calman recommended should be devolved to the Scottish Parliament. Amendment 10 deals specifically with overnight counts, which I shall discuss first. It is widely acknowledged that, by and large, people in Scotland want to know the results of their elections as soon as it is practicable so to do. That was the objective of the Minister when he was in opposition in the lead-up to the general election last year and it was supported by the then Opposition parties in respect of an amendment to the Representation of the People Act 1983, which my amendment seeks to replicate. The Government are well aware of the history.
Partly owing to measures of the Government’s own making, such as the imposition of a referendum on the same day as the Scottish parliamentary elections, and partly owing to the views of electoral administrators—who always come out of the woodwork during the build-up to elections—there has been continuing speculation in recent weeks that returning officers will again seek to move wholeheartedly to morning counts, which is something that they do habitually. They tried it in 2005—when, as an employee of East Dunbartonshire council, I was closely involved in the arrangements relating to the count for the redrawn East Dunbartonshire constituency—but got nowhere. They tried it in 2007 for the purpose of the Scottish parliamentary elections, notwithstanding the disruption caused to those elections, although—unlike the design and descriptions on the ballot papers—the time of the count was not an issue; and they tried it again in the run-up to the general election.
As the Minister will recall, I raised the matter with him via the Leader of the House. Despite an earlier suggestion that it might be dealt with in the Parliamentary Voting System and Constituencies Bill, he wrote to me saying that he was not prepared to change the law, that it was all very difficult, that returning officers were independent and he could not tell them what to do, and that we should leave it at that and lobby if we so wished. That was an interesting revision of the view that the Minister had expressed about a year ago, before the general election. I have with me the letter that he sent to me, in which he said that he assumed that I knew all that, given my long service as a special adviser at the Scotland Office. Given that long service at the Scotland Office, I was also aware that I would receive a letter from officials that I would send back, asking them to try again. Perhaps the Minister will learn that in the months and years to come.
The spectre of election counts not starting as soon as practicable is still with us in respect of the voting in May. Although the revered Tom Aitchison of City of Edinburgh council is no longer in post, his successors keep trying. The amendment deals with the issue for the next election to the Scottish Parliament and every other set of Scottish parliamentary elections by invoking the amendment to the Representation of the People Act that finally dealt with it before the general election.
I note the comments of the Electoral Commission, which has said that the amendment contains flexibility to deal with the position in constituencies such as Argyll and Bute in which there are practical problems connected with starting counts. However, it allows the counts to begin as soon as practicable after the election. Given that the Minister and his colleagues voted for this 12 months ago, I am sure that even within the scope of the coalition agreement there is the opportunity for some consistency on the Government’s part. I hope that those of us, in all parts of the Committee, who wish to reflect the view of our constituents that counts should happen as soon as possible after elections make our position clear. I shall be interested to hear the Minister’s comments.
I find myself in the extremely unusual position of agreeing entirely with everything that the hon. Member for Rutherglen and Hamilton West (Tom Greatrex) has said. That is not surprising, however, given that the amendment that was accepted by the Government approximately a year ago, before the last general election, was originally tabled by me. The right hon. Member for Blackburn (Mr Straw) wisely added his name to it and accepted it as a Government amendment, and it became part of the Bill. At the time, I thought that that was the only thing that I had ever achieved from the Opposition Front Bench, but perhaps that was due to the cynicism engendered by 13 years of opposition.
I am delighted that the hon. Member for Rutherglen and Hamilton West has tabled the amendment again. It was very popular with Members in all parts of the House when we debated it a year ago. It became law, and it made a difference to the way in which the general election was administered and to the timing of the extremely disappointing results of that election across the country. But if we were going to get bad news, perhaps it was as well to get it sooner rather than later. That is not the point, however. The point is that, in the operation of our democracy, it is right that election counts should take place as soon as practically possible after the close of poll.
We discovered that many excuses were being made by returning officers around the country for not undertaking their duties in a timely and correct manner. They made every excuse that they could think of, none of which proved to be correct, because, when the law was changed and they were required to act as they ought to have been acting in the first place, they did so. I look forward to hearing what the Minister has to say on this amendment, but I hope that I shall be able to support what the hon. Gentleman has just proposed to the Committee.
I welcome you to the Committee, Ms Primarolo. I know how much you appreciate the convivial nature of Scottish debates, and I hope that we will do our best to behave ourselves today and to conduct these proceedings in a civil manner.
On Second Reading, we made it clear that it was our intention to improve and strengthen the Bill. I concede that, over the past few weeks, significant progress has been made in that direction. We have already had the report from the Scottish Parliament’s Bill Committee, which made a number of useful and helpful recommendations, especially those that apply to the non-fiscal parts of the Bill. I welcome those recommendations. It is perhaps unfortunate, however, that some of them cannot be properly debated because of where we are in the process. The Scottish Parliament has not even passed its legislative consent motion, yet we are here in Committee today discussing the Scotland Bill, line by line and clause by clause.
Notwithstanding all that, and the fact that there is a huge amount of discussion still to be had, will the hon. Gentleman address the amendment? Does he not agree that it is absolutely right that the count in all Scottish parliamentary elections should take place immediately, overnight?
I have no dispute whatever with the hon. Lady about that; of course the count should take place as soon as possible—[Interruption.] If she will allow me, I must point out that we are debating clause 1. She needs to check what we are discussing just now.
We have made progress, but it is unfortunate that we are unable to debate certain amendments that could have been tabled on the back of what was proposed by the parliamentary Bill Committee in the Scottish Parliament. We are at a different stage in the process. The legislative consent motion has not been passed, yet we are here today scrutinising the Bill in detail in Committee without having access to that important work.
May I seek clarification from the hon. Gentleman? Why are he and his colleagues tabling amendments that do not appear in the Scottish Parliament’s legislative consent motion Committee? For example, they are tabling an amendment proposing to devolve the matter of especially dangerous airguns to the Scottish Parliament, even though that was not the unanimous view of the Committee. If he respects the view of the Committee, why is he tabling such amendments?
Order. I know that the Minister is eager to debate airguns, but perhaps he could wait until we get to the relevant clause? Meanwhile, I am sure that Mr Wishart was going to stick to clause 1 and this group of amendments.
I am grateful to you, Ms Primarolo. That is exactly what I was going to do. May I just say to the Minister, however, that we will introduce and propose our own amendments? His problem as a Minister, and the problem for all the Calman commission parties, is that they have no opportunity to table their own amendments relating to the recommendations of the Scottish parliamentary Bill Committee. There has been no opportunity to do that because we got the Bill Committee’s report only on Friday morning.
That answers one of the questions that I was going to put to the Minister, which is when are we going to see those amendments? How are they going to be introduced? If they are all to be tabled on Report, we will need a little more time to discuss them than is currently available. It would be unacceptable for them to be tabled in the unelected House of Lords. It is the responsibility of directly elected Members of Parliament to discuss those issues, and we should have the opportunity to do so. Those amendments should not be tabled in the House of Lords; they should be discussed on the Floor of this House. We should also have more time on Report, if that is when we will see those important amendments arising from the Scottish Parliament’s Bill Committee.
My hon. Friend will have noticed the Minister saying that there would be time later—perhaps on Report—for the consideration of any amendments that follow the LCM Committee’s recommendations. However, during earlier exchanges the Secretary of State was nodding when my hon. Friend was confirming that the Government would not be bound by the LCM Committee’s recommendations. Will he now press the Government to confirm that if the LCM Committee proposes serious amendments or makes recommendations that would improve the Bill, they will accept them?
My hon. Friend poses an important question for the Minister. That is what we need to hear: are the Government of a mind to accept those recommendations? [Interruption.] The Secretary of State is saying no. That is very clear. This is not an issue just for me; it is an issue for all my colleagues in the Chamber. This was supposed to be a process that started in the Scottish Parliament, but now that recommendations have been made, the Secretary of State is saying that he is not of a mind to accept them all. Perhaps he could give his view on what he is prepared to bring forward and what he is not prepared to bring forward.
If I may repeat what I said to the Chair of the Select Committee on Scottish Affairs and the Scottish Parliament’s Committee, we are already actively considering all the different proposals that have come forward from what is an excellent and serious report. We are taking it seriously and we will bring forward our thoughts on it at the appropriate moment, with time for plenty of scrutiny both here and in another place.
That is a helpful contribution from the Secretary of State, but perhaps when the Minister winds up he could tell us when we will see those amendments, where they will be introduced and when elected Members of this House will have the opportunity to debate them.
I bring all this up because the Scottish Parliament’s Bill Committee makes an important recommendation in relation to the proposals for electoral administration. What we see in new clause 1 is the partial devolution of some administrative responsibilities—not all, as was recommended in the Calman report—from the Secretary of State to Scottish Ministers. The Scottish Parliament’s Bill Committee said that two more areas should be added, covering the disqualification of Members and arrangements for elections to the Scottish Parliament. The Committee made those proposals, but we have not had the opportunity to debate them because we have not seen any amendments.
Why is that important? It is important because of recent experience. We have to go back only four short years to find out what can happen in electoral administration, when more than 140,000 of our fellow citizens were effectively disenfranchised. They lost their ability to vote because of how the Labour party, which was then administering the Scotland Office, failed to discharge its obligations and responsibilities seriously and sensibly. Some 140,000 people lost their votes in the last Scottish Parliament elections. To be fair to the former Labour Scotland Office, a number of problems with that election were identified. To the previous Government’s credit—I acknowledge this—they brought in Ron Gould to look at what went wrong and perhaps make recommendations to ensure that it never happened again.
I accept that, and I said that the failings identified were not just those of the then Labour Scotland Office, although it was in charge of the process and the buck stopped there. Ron Gould identified a number of issues in his report. One of the key things that he identified was fragmentation and a disparity in responsibilities between this House and the Scottish Parliament. He made the strong suggestion that all responsibilities and arrangements for Scottish Parliament elections should be in one place, under one jurisdiction, and he gave the strongest possible hint that that should be the Scottish Parliament. The Scottish Parliament considered the Gould report back in January 2008. Its Members were unanimously of the view that all electoral administration, including competence for elections, should be in one place, and they made it clear that that place should be the Scottish Parliament.
I am more than happy to acknowledge that Ron Gould was not right about everything, but I think most Members accepted the broad thrust of his report’s recommendations in respect of the structural problems that arose in the 2007 election. One of his recommendations was that all responsibilities for elections should lie in one House, and he gave the strongest possible hint that that should be the Scottish Parliament. Our new clause 5 proposes precisely that. It brings together all aspects of electoral administration and legislative competence and places them with the Scottish Parliament, which is where they should be. We believe that that is the case not only because about 140,000 people lost their votes in 2007, but because it is the normal way of things. Any self-respecting Parliament should be in charge of its electoral arrangements. With election to office comes accountability, and we strongly believe that all arrangements to do with elections should be the responsibility of the Parliament that has been elected on the basis of those arrangements.
I accept that the Bill’s proposals represent an improvement on current arrangements. I welcome the fact that it devolves certain administrative functions to Scottish Ministers—indeed, I welcome any transfer of powers to the Scottish Parliament—but it does not even devolve all aspects of electoral administration, as recommended by the Calman commission. That would still give the Secretary of State powers over voter registration, the rules on the composition of Parliament, the procedure for filling any regional seat vacancy during the life of the Parliament, and rules relating to disqualification.
Scottish Ministers would still need to approach the UK Government if primary legislation were required on the date of elections, for example, or even on the voting system, which is an issue that I know greatly exercises many Labour Back Benchers. The Scottish Parliament’s role would also be limited to approving or disapproving rules made by Scottish Ministers, and it would have no opportunity to shape them through its own primary legislation. Furthermore, the Bill would require that Scottish Ministers must consult the Secretary of State before making any of these rules.
The hon. Gentleman has said something that jarred with the logic of his argument. He is obviously speaking about an independent country that has its own Parliament when he says that the Parliament should decide the electoral system. Does he not accept that as this Westminster Parliament is sovereign, it is right that we decided the system—although I do not agree with it, in particular the additional Members who were added instead of bringing the numbers down to the figure proposed in the first Bill? Does he not accept that it is right that this sovereign Parliament should decide how people are elected to the devolved Parliament, as the reality is that we do not have an independent Parliament in Scotland?
Of course the hon. Gentleman and I differ as to how we would like this whole process to develop and the sort of Scotland we would like in the future, but my view is still very much that any self-respecting Parliament worthy of that name must be responsible for its own arrangements. That is just how things are done, and I believe the Scottish Parliament should have that responsibility.
Actually, I have had a look at the calendar, and I see that there is to be an election in about eight short weeks’ time, when these very issues will be debated and voted on. I also foresee a groundswell of support for the position I am advocating and a diminution in support for the hon. Gentleman’s position.
Through our amendment, we intend to fulfil the general drift and thrust of the Gould report recommendations, and to implement what has already been established in the major recommendation of the Calman commission report, which comes close to what the Scottish Parliament’s Scotland Bill Committee is proposing. The amendment also puts the voter at the heart of the process, because that is what is required. The interests of the voters come first, and they were short-changed and badly let down by what happened four years ago. Radical work was required in order to address that, and thank goodness we have the work and recommendations of Ron Gould.
I see no good reason why Westminster should remain in charge of Scottish elections; I see only the predictable knee-jerk response that this place needs to have some sort of say and role in Scottish elections. To devolve not even all the administration of Scottish elections, as was suggested by Calman, is bewildering and contrary to everything proposed. The Scottish Parliament’s Bill Committee is now saying that the devolution of administrative functions is not good enough and the Secretary of State needs to look at this again. The Committee went even further and said that before we even implement clauses 1 and 3 the Scottish Parliament and Scottish Government should be consulted and we would review this once again. It also raised many of the Electoral Commission’s concerns in respect of the electoral management board—that is currently going through the Scottish Parliament.
For all those reasons, I ask the Minister to re-examine this clause to see what can be done. Let us have a proper debate about what the will of the Scottish Parliament’s Bill Committee is and what Calman intends in all this. Let us give proper constructive consideration to ensuring that all arrangements to do with elections, be they about electoral administration or legislative competence, can be moved to the Scottish Parliament. I ask hon. Members to support new clause 5.
I am delighted to support amendment 10. It would be disappointing if we judged whether or not it was valid on the basis of what happened during the previous Scottish Parliament elections. I am sure that many hon. Members in the Chamber can come up with a compendium of reasons why that count was a disaster. All political parties in this House have to accept some responsibility for the ballot paper, which has been identified as one source of the problem, because we all consented to it. We also put our faith, wrongly, in an IT system that did not work. We could perhaps accept that there is an excuse for its not working, given the complications involved in a Scottish Parliament election as a result of different votes being counted, different constituencies and so on, but that same IT system was tried out in a local council by-election in my constituency and it took us nearly five hours to get the result. The only good thing was that this occurred in the full presence and glow of the electoral commissioner with responsibility for Scotland, John McCormick, and his senior members of staff. They realised then, if they had not already done so, that that electronic system of counting was not yet usable for future elections.
It would therefore be unfortunate if we said that one of the reasons why we do not want overnight counts relates to that disastrous night, although the hon. Member for Perth and North Perthshire (Pete Wishart) is right to identify the number of ballots that were lost—people’s votes that were lost. Ron Gould fell into the trap of stating that that was the reason why overnight counts were not wanted. He did not look beyond a particular set of circumstances on a particular evening when a series of issues arose that, in retrospect, could perhaps have been dealt with differently.
I have been astonished by the reaction of returning officers. For most of my political life, they have been able to deliver an overnight count without any great anxiety about whether or not staff had to work overnight, yet they have suddenly decided, in their wisdom, that they do not want to accept the responsibility of an overnight count. It came as a surprise to many of us before the last election that what we thought was a given—an overnight count—was no such thing. We then discovered that returning officers had it in their power to decide when they wanted to count an election for this or any other House. With the greatest respect to returning officers across Scotland, I do not think it should be their responsibility to decide when the count should take place. It is for this Parliament to decide when an election count should take place and I hope that the Government will consider the amendment seriously and will look at how they engage with returning officers, because, as we found out before last year’s general election, custom and practice will not be good enough.
Knowing my hon. Friend’s grasp of the political minutiae of local government and returning officers, I am sure there is deep insight in those comments, but I am not quite sure what it is at the moment—unless he wants to explain his point in a way that I might understand.
I thank my right hon. Friend for giving way again. If returning officers are going to work office hours to do the count, rather than overnight, they should not get any additional money. In those circumstances, perhaps we would save money if we moved the count.
I understand now exactly where my hon. Friend is coming from, and I am sure that he would never have put forward that argument when he was a full-time officer of the National and Local Government Officers Association, but I will let that one stick to the wall.
There are all sorts of reasons why we should insist on an overnight count. Sometimes, we say that there is disillusionment in politics, but one area of excitement, even if it is only mini-excitement, is in waiting for the overnight count, and that is not just for apparatchiks and anoraks such as ourselves in the House. I think you would be amazed, Ms Primarolo, how many people like to listen and wait for election results to come in. Indeed, the figures show that.
May I confirm my right hon. Friend’s point about excitement? I remember wondering last Thursday, or in the early hours of Friday morning, “Will the Liberals come second or third in Barnsley, or will they come fourth or fifth?” But then, ecstasy of ecstasies, it turned out that they came sixth. The excitement built throughout the night, and that is why it is essential to have a count overnight.
Such was the excitement.
Indeed, but I was delighted that when I awoke, what I at first thought was a dream was in fact reality—Labour had not only won that by-election but had won it with an increased majority and an increased percentage of the poll, and a member of the coalition parties had come further down. However, I see that I am taxing your patience a little, Ms Primarolo.
I want to highlight the Electoral Commission’s comments. I am a wee bit surprised by the attitude it has taken in not supporting overnight counts, and I feel it has based its assumptions on what happened in the last election, four years ago. It makes a good point in saying that returning officers should not be expected to conduct parallel counts for the first-past-the-post and regional lists, but it is a bit disappointing that it has not recognised that part of the culture of elections in this country, and in many others, is sitting and waiting for the overnight results to come in. That happens in American presidential elections and others.
Does the right hon. Lady agree that although the excitement is certainly important to people like us who are involved in these matters, it is not just a matter of excitement and media presence? It is also about good electoral governance, good management of the electoral process and bringing conformity right across the country. Last year, we discovered that returning officers had held themselves responsible for what happened in their area and that many of them refused to be told or to behave in the way that the Electoral Commission thought they should. Is it not therefore up to this Parliament and the Scottish Parliament literally to lay down the law so that there is conformity of action in every election taking place at the same time?
The hon. Lady makes a valid point. Like her, I do not want to overplay the excitement, in spite of our reflections on last Thursday night, because sometimes we can get carried away with that.
The continuity of the election process and the election day is important. The election day does not finish until there is a declaration of the count. It is also necessary to give people the confidence that when they put their vote in a ballot box, which is sealed, it is resealed at the close of play and transported immediately or as quickly as possible—if the two are not mutually exclusive—to the count. Part of our historic attitude to elections is the speed with which we can get the individual’s vote from the place in which it was cast to the place of the count.
We should recognise that, for the most part, we are not talking about transporting ballot boxes in the depth of winter. These elections are conducted in the spring. I have a constituency which, as some colleagues are no doubt fed up with my telling them, is the size of Luxembourg. I know that the hon. Member for Na h-Eileanan an Iar (Mr MacNeil) has a constituency that extends far wider than that, but in the case of my constituency, we are talking of a distance of some 65 miles, and I have never heard of any difficulties in transporting the ballot boxes in reasonable time from outlying villages such as Tyndrum in the most northerly part of the constituency down to Stirling for the count.
I am not into the Simon Cowell approach to voting. Some of our younger colleagues who entered the House at the last election might see that in the future, but I do not have as much confidence in voting by mobile phone as the hon. Gentleman may have. We must make it as easy and straightforward as possible for people in varying circumstances to cast their vote. That is why the extension of postal voting has been such a welcome addition.
We should consider seriously the way in which the House wants to see its elections and the count of those ballots conducted. I would be disappointed if we based all our analysis on the situation that arose four years ago. It was an unusual situation. There was a coincidence of circumstances which made the count difficult. If the Government are serious about achieving consensus on a major constitutional issue, I hope they will not just rely on the good will of electoral returning officers, but take account of the will of the House, which is, I hope, to count our ballots overnight for the Scottish Parliament elections.
It strikes me that all political parties are like Simon Cowell—they want the person they own to win whatever campaign they are involved in, so we have a vested interest, although I would not go as far as the hon. Member for Na h-Eileanan an Iar (Mr MacNeil) might go.
My right hon. Friend the Member for Stirling (Mrs McGuire) was right about the myths regarding the errors of 2007, as if it was all down to the ineptitude of the Scotland Office at the time, or of the returning officers. It is clear that the complication in 2007 was the counting of two ballots for two different purposes on two different mandates, combined with the construction of a ballot paper that did not make sense to the elector and clearly, in the count that I watched at great length until I retired to bed at about 4 am, was not fully understood by the returning officer in my area.
I know a little about that, as my son lives in Australia, which has a totally electronically registered electorate who all must register and vote. He travels a great deal all over Australia with his job and finds absolutely no difficulty in voting, because he can pop into any electoral office in any town at any time up to three weeks before a ballot and cast his vote for the area in which he lives, so it is a very sensible system. It is surprising that we have not caught up with the technology. It would certainly be a great advantage if we did, as that might engage people much more in the ballot.
The idea that we had a problem because we counted overnight is wrong. Although those of us who soldiered on might not have been quite as excited by the process as my hon. Friend the hon. Member for Glasgow South West (Mr Davidson), it was clear to us that the muddle was created by there being two ballot papers. The other question relates to the training of returning officers, because I do not think that the returning officer I watched was competent enough to deal with the ballot, and some crazy errors occurred. For example, he did not tell a candidate who had lost in a council election going on at the same time that he had lost by one vote. The candidate did not discover that until the next day and so was not allowed a recount. Whether that was the result of incompetence, or just the fact that the returning officer was so fatigued that he wanted to get home to his bed and not have another recount in that crazy system running parallel to the Scottish election is another problem.
The hon. Member for Perth and North Perthshire (Pete Wishart) seemed to argue that at whichever level an election takes place—Scottish Parliament level or UK Parliament level—that level should have control over its own type of ballot. By that argument, local councils would be put in charge of their elections and allowed to decide all the things that have been argued for, including exactly who would be elected, how they would be elected and what the franchise would be. That is a nonsense. Presumably for Scottish Parliament elections it would be the First Minister who decides, certainly in the present Scottish Government, as only one person seems to make all the decisions in that Government. Those aspects must be determined by the level above that being elected. For example, the Scottish Parliament, quite correctly, controls the methodology for local elections, just as this sovereign Parliament, which set up the Scottish Parliament, should decide if it wishes to change that, possibly in negotiations. That is not saying that there is not a dialogue to be held, but the idea of putting it down does not make much sense.
Therefore, I support the amendment. As my right hon. Friend the Member for Stirling said, the important point is that when people put their ballot papers in the ballot box, they expect it to be transported securely to the place where they are to be counted. One of the reasons why that was set up for UK elections was to let people know that ballot boxes are not stored somewhere else where they might be tampered with, so there is no split between the process of voting and the process of counting. To push that back to the next day is to add to people’s cynicism about how elections are conducted and how the count comes out.
It is clear to me that the lesson we should learn from 2007 is that we should not have two counts on the same evening. Therefore, we should not have the two processes of electing representatives and choosing the method of election at the same time. That argues strongly against the Government’s proposal to have a referendum on a voting system on the same day as the Scottish elections, because that is asking people to postpone the count for the electoral amendment to the next day. It might be fine, because I think that it will be the great yawn of the century—I can just see people getting as excited as my hon. Friend the Member for Glasgow North about exactly what little deviation in the electoral system they will be allowed in the process of choosing which system to use.
My constituency is Glasgow South West.
That was not a deviation. Was it not a major result? One of the country’s governing parties came not even second in a by-election, and not even third. If I remember correctly, it was not even fourth or fifth. [Laughter.] It is indeed laughable that it came sixth. I believe that it beat the Loonies, but only barely because there was some blurring at the edges. Is that not worth being excited about?
Obviously, my hon. Friend is the Member for Glasgow South West, and I do apologise to my hon. Friend the Member for Glasgow North (Ann McKechin), who has offices across the corridor from me. I should really remember that.
A change to AV would not have helped the Liberal Democrats in that election, and any such change will probably not help them in the future, either. The point that I am trying to make is a very serious one, however. To have two different ballots, a referendum on a voting system and a vote for an elected chamber, is to mix up the purpose and focus of the electorate on that day, but that might be the reason behind it all. The possibility of not coming sixth and getting a few votes as the minor party in the coalition might be the reason for holding the two ballots on the same day, but that certainly argues for splitting the process. In the proposals before us, we say that the count for the Scottish Parliament should take place overnight, which is quite correct—and basically no one really cares what happens to the referendum.
We have to ask ourselves a fairly simple question about when the count is held: for whose convenience are elections run? There is a view, very strongly held, that elections are run for the convenience of returning officers. I do not take that view; I tend to think that people generally want elections run for their convenience. A tradition has developed over a long period, whereby those who do not follow an election overnight wake up in the morning and hear the result, and I see no good reason why we should not make that stipulation. Of course professionals and those who are competent at, and have experience in, running elections should have a say in how polls are carried out, but they should not be the tail that wags the dog.
That is one of the issues, however, because if we have an election management board, with the role of the Electoral Commission being brought into question, it must be under democratic control; it must not be self-employed and able to set its own rules according to its own convenience, because its view of what is best will often be determined by self-interest.
I understand, however, that the Government are about to announce a change in the rules about the announcement of by-elections, so that when the Government, particularly the minority governing party, have a successful result along the lines of that in Barnsley, it will be announced some two days after hell freezes over. That does not seem to be an appropriate outcome. Not only did the junior partner in the coalition—this cuts coalition—come sixth; it has been suggested that it came sixth only because the Scottish National party was not standing, and that support for the SNP in Barnsley would have been far greater than that for the Liberals. I can understand that.
I was interested to see that the UK Independence party—basically the British National party with suits—beat the Conservatives, which again tells us something significant. People do find that quite exciting and stimulating. I want to ensure, however, that the Government’s position is that two ballots should not be conducted at the same time, because, unless the Government change their mind, the Scottish Parliament elections and the AV referendum will be held on the same day. I hope that we can secure the commitment that they will be counted separately, because most of us want to see the Liberals get a kicking twice, and it would greatly spoil our enjoyment if the results came out at the same time. People in Scotland want to be able to say no to separation, no to cuts, no to the coalition and no to AV, and they need the announcements to be clearly separated.
Finally on the issue of delay, I am old enough to have read about John F. Kennedy’s presidential election. The result turned on Illinois, and in Illinois the result turned on Chicago. Chicago, despite being an urban area, was about the last area to announce its vote, because the Democrats held the results back until they found out how many votes they needed to win that state and, hence, the American presidential election. Thankfully, we have always been free of any such suggestion in this country, but it will be considered a possibility if there is any undue delay. It is therefore important to proceed with the count as quickly as possible.
I would like to remind people of the excitement that they, too, felt when they heard the result of the Barnsley by-election. I do not know whether I have mentioned this, but the junior partner in the coalition did not come anywhere close; in fact, it was sixth. I do not have the figures with me, but I suspect that it was only the votes of a couple of households, and the fact that the SNP did not stand, that stopped it coming 10th out of nine candidates.
I welcome you to the Chair, Mr Evans. It is always a pleasure to follow the Chairman of the Scottish Affairs Committee. I thank the hon. Member for Rutherglen and Hamilton West (Tom Greatrex) for his good advice, which, as he said, he garnered during his sentence at the Scotland Office.
While Ms Primarolo was in the Chair, Mr Evans, I tried to seek some guidance on the SNP position in respect of this Bill, because, as those of us who were present during its Second Reading will know, the SNP declared it to be unacceptable. However, I am afraid that that clarity was not forthcoming.
Does the right hon. Gentleman agree that it is not only the case that the SNP found the Bill in its current, unamended form to be unacceptable, but that the Scottish Parliament’s Bill Committee made many recommendations that have significantly improved it?
The hon. Gentleman mentions the Bill Committee. I sought from him, and again he refused to answer, clarification on whether he would accept that Committee’s report, and whatever the vote of the Scottish Parliament is, rather than pursuing amendments that even his colleagues on the Committee did not pursue.
The right hon. Gentleman’s colleague, the Secretary of State of State for Scotland, has said to me and to this House that he is not of a mind to accept all the recommendations from the Scottish Parliament’s Bill Committee. How can we make up our minds if he does not tell us what is and is not going to be accepted?
The Secretary of State made it clear in his written ministerial statement that the Government will give serious consideration to all the amendments and issues raised in the Bill Committee because we respect the work of that Committee and the work of the Scottish Parliament; we do not pick and choose to meet our own political ends.
The Government are looking forward to the debate in the Scottish Parliament later this week when it will consider the legislative consent motion coming forward from the Bill Committee. It will be very interesting to see how the SNP votes in that debate.
Clause 1 transfers to Scottish Ministers certain Executive functions relating to the administration of Scottish Parliament elections that are currently the responsibility of the Secretary of State. Members will wish to note that the Bill Committee in the Scottish Parliament accepted this provision in its report on the Bill. However, as has been mentioned, the report also asked for consideration of a number of related issues such as the procedure for filling any regional seat vacancy during the life of a Parliament, the rules relating to disqualification, and reciprocal consultation. I wish to reaffirm that the written statement from the Secretary of State makes clear our commitment carefully to consider those recommendations, including those relating to this clause. The Scottish Parliament will vote on the Bill on Thursday, and we await the outcome of that vote.
The clause will enable Scottish Ministers to make general provision by order for the conduct and administration of elections to Holyrood, subject only to some necessary constraints. This power includes making provision about supply or otherwise dealing with the electoral register, the combination of Scottish Parliament elections with other elections falling within the legislative competence of the Parliament, and limitation of candidates’ election expenses. However, some elements of the powers will remain the function of the Secretary of State—that is, the franchise and the power to combine Scottish Parliament elections with other reserved elections. That will ensure that issues of constitutional importance continue to be dealt with by the UK Parliament. The Scotland Bill Committee in the Scottish Parliament recognised and accepted the continued reservation of those matters.
Amendment 10, as the hon. Member for Rutherglen and Hamilton West said, would require Scottish Ministers’ first conduct order under the new powers to include provision requiring returning officers to start the count at Scottish Parliament elections within four hours of the close of the poll, or to publish a statement explaining why they were unable to do so. It is important to clarify at this point that the amendment would not apply to the 2011 Scottish Parliament elections.
I recognise the strength of feeling on this issue, which has been set out eloquently by the right hon. Member for Stirling (Mrs McGuire), the hon. Member for Linlithgow and East Falkirk (Michael Connarty) and my hon. Friend the Member for Epping Forest (Mrs Laing). The drama and excitement of election night and the wish to know the election result as soon as possible are vital parts of our political heritage. I want returning officers to listen to what has been said in this debate. As hon. Members who represent Scottish constituencies know, Mary Pitcaithly, the chairman of the Electoral Management Board for Scotland, will be available to Scottish MPs to discuss the arrangements for the forthcoming Scottish elections at a meeting at the Scotland Office later this week. I am sure that the point about overnight counts will again be forcefully made.
In a recent response to the hon. Member for Rutherglen and Hamilton West, I suggested that he and his colleagues should lobby for overnight counts. I had noticed that the counts in Conservative-led council areas such as Dumfries and Galloway, Scottish Borders and South Ayrshire were scheduled to be overnight counts, and that Labour predominated in the council areas that were on the list of counts scheduled to happen the following day. I therefore thought that he might be able to bring more influence to bear than I in those areas.
The hon. Lady cannot have heard me say that the amendment would not apply to the 2011 election. I am surprised that she, of all people, takes the view that when we are devolving powers to the Scottish Parliament on this matter, we should curtail them. Once the powers have been devolved, it will be perfectly possible for the Scottish Parliament to take account of the representations that have been made from certain quarters, where there is clearly an equally strong feeling about overnight counts. Passing this amendment would be contrary to the spirit of devolving responsibility for these matters to the Scottish Parliament. I certainly hope that we will not see support from the Scottish National party for such curtailment of a newly devolved power.
Does the Minister agree, given the strength of feeling that has been clearly shown across the Committee this afternoon, that this matter should be left to a free vote for Government Members? This point elicits a great deal of excitement and passion among Members, so it would be appropriate to deal with it on the basis of Members’ own judgment, rather than on a party political basis.
From the hon. Lady’s experience of the Scotland Office, she will know that this is a debate not about the merit of overnight counts, but about whether the Scottish Parliament, in gaining new powers over the administration of elections, should have those powers constrained in respect of an election that is likely to take place in 2016.
It is not about the count on the night of 5 May 2011. I advise the hon. Member for Glasgow North and other Labour Members to come along and speak to Mary Pitcaithly later this week and reinforce the strength of feeling that exists for overnight counts for elections to the Scottish Parliament.
Does the Minister believe that it is right that elected Members of Parliament should have to lobby an unelected bureaucrat about the way in which the elections should be conducted? I appreciate that the change in the rule will not apply to this year’s elections, but it is unfortunate that we have got ourselves into a position whereby the best that the Minister can suggest is that we go along and lobby a bureaucrat, no matter how worthy.
The hon. Gentleman will recognise that since it was first suggested that few overnight counts would take place in Scotland for the election of 5 May, the number has grown significantly, partly because of the expression of public opinion. Today’s debate and some of the eloquent contributions that we have heard will further reinforce that. Passing the amendment this evening will not move the matter forward because it will have no impact on the count.
I fear that the Minister may have missed my point. I recognise his legal and technical argument that the matter will be the Scottish Parliament’s responsibility in 2016, but surely some seven or eight weeks away from the potential for counts to be postponed until the next day, we should send out a message from this House that we expect an overnight count.
The point at issue is whether the Scottish Parliament should have the right to make those decisions. The Bill grants those powers. The second question is how we get what we all want: an overnight count at the forthcoming election. Does the Minister have any power under other primary or secondary legislation that he could use to make that happen so that we do not send a message, but just make it happen?
I note the hon. Gentleman’s comments, but I believe that we can all play a role in ensuring that it happens through the force of our argument. Again, I invite colleagues to join me and others at the meeting with the chairman of the Interim Electoral Management Board.
The Minister is doing a stoical job in trying to defend the indefensible, but the right hon. Member for Stirling (Mrs McGuire) is right. Notwithstanding the fact that we want everything devolved, not just the administration, the clearest signal that we are backing public opinion in wanting an overnight count would be voting for amendment 10 and allowing the Scottish Government to make the decisions thereafter.
I do not know why I should be surprised at the SNP’s voting against more powers for the Scottish Parliament in an attempt at gesture politics, in which its specialises.
The SNP referred to new clause 5, on which we will vote on the third day of Committee proceedings. That would give the Scottish Parliament full legislative competence for the Scottish Parliament elections. That goes far wider than the Calman commission’s recommendation to devolve only the administration of elections. The Government gave careful consideration to the extent of the powers to be devolved on the evidence provided to the commission, and we believe that the proposals in the Bill strike the right balance. Devolving elements of responsibility for the administration earlier, as was outlined earlier, is consistent with the Calman commission’s principle—
This will not be the first time during the Committee’s discussions that I refer to the fact that the SNP declined to take part in the deliberations of the Calman commission, and indeed set up its own national conversation. Many issues on which SNP Members now claim outrage could have been fully debated if they had raised them at that time. The Bill is based on the recommendations of the commission.
The Minister says that the SNP declined to take part in Calman. He will, I am sure, want to confirm for the record that the Government refused to accept all the Calman recommendations, and that the Bill does not go even as far as Calman suggested it should.
Given the hon. Gentleman’s thorough research into all matters on which he speaks, I am sure he has read in detail the Command Paper that accompanied the publication of the Bill, in which the Government set out their response to each and every Calman recommendation, and how, whether in legislation or otherwise, those are being taken forward.
Government amendment 29 to clause 3 is technical and ensures that when Scottish Ministers make orders about the administration of Scottish Parliament elections, they can include the type of technical supplementary provision set out in section 113 of the Scotland Act 1998. For example, Ministers could make different provisions for different purposes or make consequential or savings provisions. The amendment also ensures that any criminal penalties imposed in such an order are subject to the appropriate limits. It gives Scottish Ministers the same supplementary powers and constraints as currently apply to the Secretary of State when he makes provision on the administration of Scottish Parliament elections.
I commend clause 1 to the House and urge the hon. Member for Rutherglen and Hamilton West (Tom Greatrex) to withdraw his amendment.
We have had an interesting start to the Committee. The Minister will have heard the concern of Members of both sides of the House at the possibility that overnight counts will not happen. In all candour, it is not good enough for him to stand at the Dispatch Box and suggest that we go and lobby Mary Pitcaithly on Thursday on the matter. We have the opportunity now to set a position that the Minister voted for in relation to elections to this House, which is a perfectly responsible position.
The Minister would do well to listen to the hon. Member for Epping Forest (Mrs Laing). I apologise to her, because I was unaware that the wording of amendment 10 is borrowed from her. I hope she feels emboldened enough to vote for it. I have heard her argue against the Government on other occasions, but she has felt unable to follow through and vote against them. I hope she has the confidence to do so today.
This issue is at the heart of electoral administration. As I said, at every set of elections, electoral administrators say, “We don’t want overnight counts. We can’t do it for reason A, B, C, D, E or F.” The proof is not in what Ron Gould says, but in what we all witnessed in May last year. If we set a position, the electoral administrators can get on with it. Let us make that clear for the Scottish Parliament elections as well as for other elections.
Question put, That the amendment be made.
Clause 1 ordered to stand part of the Bill.
Combination of polls at Scottish Parliamentary and other reserved elections
With this it will be convenient to discuss the following: clause stand part.
New clause 7—Timing of the Scottish Parliamentary general election—
‘(1) Section 2 of the 1998 Act is amended as follows.
(2) At the end of subsection (2) there is inserted “or unless the poll is advanced or delayed as a result of the operation of subsection (6A) below”.
(3) At the end there is added the following new subsection—
“(6A) If the poll to be held under subsection (2) or subsection (5) above is in the same calendar year as an early parliamentary general election under section 2 of the Fixed-term Parliaments Act 2011, the Parliament may by resolution appoint an alternative day for the poll for the next Scottish Parliamentary general election no more than 12 months earlier nor more than 12 months later than the day appointed under subsection (2) or subsection (5) above and at least 6 months before or after the parliamentary general election, and the day so appointed shall be treated as if it had been proposed by the Presiding Officer under subsection (5) above.”’.
Amendment 11 and new clause 7 are probing amendments regarding the potential for elections to happen on the same date. In the previous discussion, we heard a lot about the Gould report and the issues encountered in the 2007 Scottish Parliament elections. Ron Gould concluded that one of the primary problems was a combination of elections on the same date, and that has been implicitly recognised by the Secretary of State in some of his discussions about the potential clash arising from the Fixed-term Parliaments Bill. Despite the fact that there are a number of concerns, this issue has been included in the Bill not because of something that Calman deliberated on, but because of the Fixed-term Parliaments Bill going through Parliament. That would not, of course, be an issue if that Bill had proposed a four-year term, because a four-yearly cycle for the Scottish Parliament elections and a four-yearly cycle for the UK Parliament elections would mean that the elections would always be at different times. That is why we tabled the amendment. As every authority questioned by the Select Committees that have examined the issue has said, there is very little, if any, precedent for a five-year term, and a four-year fixed term is much more appropriate. That is why I raise the matter today. New clause 7 is also relevant to the potential problems created if an extraordinary general election for the UK Parliament were to take place under a coalition Government, for example.
The Secretary of State, who is no longer in his place, might well be thinking about how long he might be able to continue as Secretary of State, and what my hon. Friend says could well be one of the reasons for that stance. If we are in a position in which an extraordinary general election has to take place, new clause 7 would provide the opportunity to deal with it in a way that is appropriate for both the Scottish and the UK Parliaments and would save us from having to conduct both elections in the same year. It deals with the problem of confusing the issues of the two different elections and should help us to avoid the problems experienced in 2007, when having two electoral systems for different Parliaments at different elections caused some confusion. It is our responsibility to do what we can to ensure that people are made aware of how their elections work and to make those elections as straightforward as possible. That is the intention behind amendment 11 and the accompanying new clause 7, which deals with extraordinary circumstances.
This clause amends the Representation of the People Act 1985 to provide that when a Scottish parliamentary general election and a parliamentary general election or a Scottish parliamentary general election and a European parliamentary general election are to be conducted on the same date, they should automatically be taken together. It will also allow for the polls to be combined if the returning officers so agree where polls for related areas are taken on the same day—as, for example, with a Scottish Parliament by-election and a parliamentary general election.
Amendment 11, as proposed by the hon. Member for Rutherglen and Hamilton West (Tom Greatrex), would remove the mandatory requirement that where the polls at a Scottish Parliament general election and a UK Parliament general election fall on the same day, the administrative arrangements must be taken together. The amendment would not stop the polls taking place on the same day, however, and it leaves returning officers with the discretion to combine the polls if they think fit to do so. Alternatively, if they are not combined, various processes such as the issue of poll cards and postal votes or voting at polling stations would have to be run side by side.
As it stands, the clause will allow poll cards, postal voting materials and polling stations to be shared. It effectively streamlines the process of organising and running the two polls on the same day, avoiding potential duplication of functions where polls held on the same day would otherwise be run in parallel and it enables overall costs to be reduced. If two polls fall on the same day, for whatever reason, electoral administrators agree that combining them is the best option. It makes it simpler for the returning officer to administer and, more importantly, makes it easier for voters to cast their votes at both polls. If the intention behind the amendment is to stop the polls taking place when both elections fall on the same day, it does not work. If the intention is to make it easier for the voter, that, too, I would suggest, does not work.
I would like to offer some anecdotal evidence from my constituency at the general election. That poll coincided with a local government poll. The arrangements were that postal ballot papers for the local election were sent out earlier than those for the general election. A number of electors expressed their confusion and asked why they had only one ballot paper when they were expecting two. The imperative of combining the two elections in one is incredibly important.
I thank my hon. Friend for his valuable insight based on his personal experience.
In addition, if the intention of new clause 7 is to avoid the poll at a scheduled Scottish Parliament election from falling on or close to the date of the poll for an early parliamentary general election held under clause 2 of the Fixed-term Parliaments Bill, it does not work.
I appreciate that the clause will not apply to the next Scottish election, but there are difficulties in Aberdeen where we have the forthcoming vote on AV and a vote on the Scottish parliamentary elections, which require two ballot papers. Sadly, one of the Liberal Democrat councillors died recently, as a result of which a by-election is also likely to be held on 5 May. The electorate in Aberdeen are thus looking at four separate polling formulae under different systems. The Minister used the word “streamline” earlier, so will he help me by explaining how we are going to streamline the elections in those sorts of circumstances?
The arrangements for the conduct of the Scottish Parliament election and the AV referendum allow for a council by-election to be held on the same day. As I understand it, that by-election will take place on the basis of one form of the alternative vote system.
On the specific case that the hon. Gentleman mentions, representations can be made to the returning officer, because the polls are not required to take place on the same day. The by-election poll does not have to take place on 5 May; it is a decision for the returning officer. That by-election poll should also take place in a separate polling station, although possibly within the same building.
As I understand the current law on local government by-elections, the election must be held within three months of the death or resignation of the councillor—except when there is also a UK parliamentary or Scottish parliamentary election. In this particular case, except at extraordinary expense, the returning officer does not have much option.
I think the returning officer has some option, but the hon. Gentleman raises an important and relevant point about the multiple electoral systems operated in Scotland. I had just mentioned that Scottish council by-elections, which are another example of polls that could be held on the same day as the AV referendum, take place under a form of the alternative vote rather than the single transferable vote.
I do not believe that is an accurate summation of the position. The clause allows for the combining of polls and the amendment suggests that they should not be combined. However, I do not accept that the amendment is successful in that regard.
If new clause 7 is designed to avoid having a poll at a scheduled Scottish Parliament election following on or close to the date of the poll for an early parliamentary election held under clause 2 of the Fixed-term Parliaments Bill, it does not work, as I have said. By its very nature, an early parliamentary general election held under clause 2 will take place at short notice following either a motion of the House that there should be such an election, or at the end of the 14-day period after a motion of no confidence.
In the unlikely event that a Prime Minister were to decide on a campaign period of at least six weeks before the date of poll at the early parliamentary general election, which would be the minimum to ensure that the Scottish Parliament had not already dissolved, the parties taking part in the Scottish parliamentary general election would have already gone to significant expense in preparing campaign literature and making other arrangements, as would returning officers. All that would be wasted if the Scottish Parliament then decided to change the date of poll. Returning officers might also have started the nomination processes and, depending on timing, might have already entered into contracts for printing and accommodation, the costs of which would, again, be wasted.
As the hon. Lady will know, what she suggests was debated extensively in the Chamber during the passage of the Fixed-term Parliaments Bill, and the House delivered its view then. As she will also know, last Thursday the Scottish Parliament voted unanimously to ask the United Kingdom Government to move the date of the Scottish parliamentary election in 2015 to avoid a clash with the United Kingdom general election. The motion stated that the Scottish Parliament
“notes the potential clash of UK and Scottish general election dates in 2015; invites the UK Government to set the next Scottish general election after 5 May 2011 for Thursday 5 May 2016, and looks forward to UK Government consultation on a legislative provision that would set apart UK and Scottish general election dates on a permanent basis.”
I am sure that Opposition Members welcome the fact that the coalition Government have consulted the Scottish Parliament fully on the matter, because it was raised in a number of debates.
Surely the Minister accepts that the Scottish Parliament felt the need to come up with that motion only because of the potential provisions of the Fixed-term Parliaments Bill. If the Bill had provided for a four-year fixed term, there would be no problem. The Government still have an opportunity to revisit that possibility, and I hope that they will take it.
The issue of the length of a fixed-term Parliament was well argued during the passage of the Fixed-term Parliaments Bill, and the fixed term that Parliament has determined is five years. The Government have therefore embarked on an active discussion of the matter with the Scottish Parliament.
My maths is not always fantastic, but I suspect that in 2020 we shall encounter exactly the same problem, because the Westminster Parliament will last from 2015 until 2020, and the Scottish Parliament will last from 2016 to 2020. Are the Government considering a permanent extension of the Scottish Parliament’s term to five years?
As the hon. Gentleman will know, a number of possibilities have been suggested, and the Government have said that after the Scottish parliamentary election, there will be a consultation on them. Some Members of the Scottish Parliament have said that they would like it to serve a five-year term, and that view will obviously be considered.
I thank the Minister for giving way to me again. He is being characteristically generous. Surely he accepts that there would be no need for so much consultation and juggling with all the possible ways of dealing with the problem if a four-year fixed term were proposed for this Parliament as well as the Scottish Parliament. He has an opportunity to make that case to his colleagues in Government, so that the issue can be dealt with when the Fixed-term Parliaments Bill returns to this House. Will he take the opportunity to make sure that that point is made?
I see no purpose in a rerun of the debate on the Fixed-term Parliaments Bill. The views expressed by the hon. Gentleman have been expressed by others, but they have not prevailed in votes in the House. The Government have set out what I consider to be the strong arguments for a five-year term for this Parliament. Because of the complicated devolution settlement in the United Kingdom, which has its own nuances—I welcome them, because they accommodate the different needs of different parts of the United Kingdom—consequential changes would inevitably be required. We have discussed the changes required in the timing of the Scottish parliamentary election and the best way of resolving the issue in a mature way through a dialogue with the presiding officer and party leaders in the Scottish Parliament.
Does the Minister not accept that in trying to extend the life of this Parliament to a term that bears no relationship to any other element of our electoral process, the Government have created a series of problems not just for themselves but for other parts of the democratic process? The result has been a number of ill-considered consequences to which the Minister and the Government attempt to apply Elastoplast every time they encounter them. This is a very expensive way of providing a lifeboat for the coalition Government to take them through to 2015.
I would take what the right hon. Lady says a good deal more seriously had the last Labour Government not extended their own life to virtually the last minute of a five-year term. That opened up the possibility of another five-year term for this Parliament, leading to a coincidence of elections with the Scottish Parliament elections in 2015 that would have taken place in an unstructured and unthought-out way. The Bill has dealt with the possible repercussions.
Will the Minister reflect on the facts? There have been two five-year Parliaments since 1992, one under the former Conservative Prime Minister John Major and the other under a Labour Prime Minister, my right hon. Friend the Member for Kirkcaldy and Cowdenbeath (Mr Brown). The Minister’s argument has no credibility. He and the Government have created a series of consequences by trying to introduce a five-year fixed term for the current Parliament. Everyone else is being forced to alter the ways in which they operate in order to suit the coalition Government.
The Minister said earlier that the Government had given some consideration to the idea of moving the Scottish parliamentary elections to 2021. He will be aware that the next local government elections are scheduled for 2021. It may interest Members to know that several years ago, in the Scottish Parliament, a certain David Mundell introduced a Bill to decouple the Scottish Parliament from the local government elections. Perhaps the Minister will tell us what his position on the issue is now.
My maths is better than the hon. Gentleman’s. I knew that already, and I knew that these were exactly the sort of matters on which discussion and dialogue were needed. It is much better for that discussion and dialogue to take place in a structured way than for it to take place on the ad hoc basis that would have been required if there had been a coincidence of elections on the basis of the arrangements that existed before the introduction of the Fixed-term Parliaments Bill. That Bill allows these matters to be addressed, and discussion and dialogue to take place. I believe that the mature way in which that dialogue with the Scottish Parliament has taken place reflects well on the coalition Government.
Does not this debate show that a draft Fixed-term Parliaments Bill, which would have allowed consultation to take place between all the relevant bodies affected by the legislation in advance of it being brought to this House, would have been the most sensible way forward?
Once Parliament had determined the nature of the Fixed-term Parliaments Bill, the appropriate thing to do was to enter into the mature and sensible dialogue that we have had with the Scottish Parliament. I am sure that, like me, the hon. Lady will welcome the fact that the motion in the Scottish Parliament was passed unanimously. The Government will take forward the wish of the Scottish Parliament to ensure that the next Scottish Parliament election after this one will take place on 5 May 2016, on the basis that voters going to the polls on 5 May 2011 will know that they will be electing their MSPs to serve for five years.
I do not feel that the amendment would achieve the objectives that it sets out to achieve. It could lead to a lot of wasted expenditure for candidates, parties and returning officers, and I accordingly commend clause 2 to the Committee and urge the hon. Member for Rutherglen and Hamilton West to withdraw his amendment.
We have had an interesting debate on these issues. I would just note again that, if there had been a proposal for a four-year fixed-term Parliament, none of this would have been a problem. That would probably have been a more sensible route to take, and it is still open to the Government to deal with that matter again in the weeks to come. In the light of what the Minister has said, we will withdraw the amendment at this stage and perhaps reflect on the matter again on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 ordered to stand part of the Bill.
Supplementary and transitional provision about elections
Amendment made: 29, page 3, line 11, at end insert—
‘( ) In section 113 of the 1998 Act (subordinate legislation: scope of powers) for subsection (1) substitute—
“(1) References in this section to a power are—
(a) to an open power,
(b) to any other power to make subordinate legislation conferred by this Act which is exercisable by Her Majesty in Council or by a Minister of the Crown, and
(c) except in subsection (9), to the power of the Scottish Ministers to make an order under section 12,
and include a power as extended by this section.”’.—(David Mundell.)
Clause 3, as amended, ordered to stand part of the Bill.
Clauses 4 and 5 ordered to stand part of the Bill.
Bills: statements as to legislative competence
I beg to move amendment 12, page 4, line 36, at end add—
‘(1A) In section 31(1) of the 1998 Act, at end add—
“(1A) A person promoting an amendment to a bill in the Scottish Parliament shall on or before the lodging of the amendment state that, in his opinion, the bill if amended in accordance with the amendment would be within the legislative competence of the Parliament.”.
(1B) In section 31(2) of the 1998 Act, at end add “and state the reasons for his view.”.’.
With this it will be convenient to discuss clause stand part.
We have had the opportunity to discuss a number of amendments with interested parties, including the Law Society of Scotland. This amendment relates to the statements of legislative competence that are made in the Scottish Parliament. The Minister will be aware that, before introducing a Bill in the Scottish Parliament, it is the responsibility of Ministers there to issue a statement of legislative competence. It is also the responsibility of the Presiding Officer to make a similar declaration. The amendment deals with a situation in which amendments are tabled to such Bills, either by Ministers or by Members, including to private Bills. For example, the Bill on the Forth road crossing is a private Bill. Many Members’ Bills are also dealt with in the Scottish Parliament.
It is important that, when the Scottish Parliament deals with legislation, it is aware that it is competent so to do. It is also important that the measures that come before it are appropriate. That has not always been the case for amendments, however. Our proposal also deals with Government amendments. A number of Bills, particularly technical Bills, have had a whole series of Government amendments tabled for which no declaration of competence has been made. It has therefore fallen to the Law Officers to consider those issues, post-stage 3 and before Royal Assent. Our proposal would enable that problem to be rectified, and would introduce a degree of consistency to the arrangements. This would bring confidence and competence to the work of the Scottish Parliament when legislative matters were brought before it.
As the law stands, only those members of the Scottish Government in charge of a Bill have to make a statement on its legislative competence when introducing a Bill in the Scottish Parliament. Clause 6, which amends section 31 of the Scotland Act 1998, will ensure that anyone who introduces a Bill in the Scottish Parliament is confident that it is within the Parliament’s legislative competence and prepared to make a statement to that effect.
The Scottish Parliament’s Standards, Procedures and Public Appointments Committee supports the amendment, agreeing with the Calman commission that a statement would provide a helpful and public indication that the legislative competence of the Bill had been carefully considered by those introducing it. The Scottish Parliament endorsed the Standards, Procedures and Public Appointments Committee’s report on 29 September 2010.
Amendment 12 would require that the Member promoting the Bill must make a statement, when or before every amendment to a Bill is lodged in the Scottish Parliament, that, in his opinion, the Bill, if amended in accordance with the amendment, will be within the legislative competence of the Parliament. That would make the Scottish parliamentary system overly bureaucratic and complex and it is, in my view, unnecessary. Should there be any concerns about the legislative competence of a Bill passed by the Scottish Parliament, which might have been substantially amended during its passage, UK and Scottish Law Officers may refer questions of competency to the Supreme Court for decision under section 33 of the Scotland Act 1998.
The Calman commission also considered the argument that the Presiding Officer should state his reasons when making a positive statement about the legislative competence of a Bill—that is, a statement that the Bill is, in his view, within competence. This was rejected on the basis that it can be relatively easy to give reasons for thinking that a Bill is outside competence, which the Standing Orders currently require the Presiding Officer to do, but more difficult to give reasons why it is within competence. The commission’s other main doubt was that exposing to public view any grey areas in relation to competence could provide ammunition to those who were politically opposed to the Bill, either during its passage or later, by providing the basis for a legal challenge. As the Calman commission reported, it would remain open to the Presiding Officer to add reasons to any positive statement about the legislative competence of the Bill, but concluded that it was unlikely that he would do so. On that basis, I urge the hon. Gentleman not to press his amendment to a Division and to support clause 6.
With this it will be convenient to discuss the following: amendment 14, page 5, line 30, leave out ‘Edinburgh Gazette’ and insert ‘Belfast Gazette, the Edinburgh Gazette and the London Gazette’.
Amendment 15, page 5, line 31, leave out ‘considers’ and insert ‘and the relevant Law Officers consider’.
Clause stand part.
We have discussed amendments 13, 14 and 15 with a number of bodies, including the Law Society of Scotland, and we are attempting to clear things up and respect the doctrine of the separation of powers, so that the Executive can take responsibility for publishing references made by them in relation to the suspension of Acts subject to scrutiny by the Supreme Court. The Bill currently stipulates that the Presiding Officer shall publish the notice of any reference to the Court in the Edinburgh Gazette, and in other ways as he or she considers appropriate. As the Minister will be aware, the references will be made by one of the Law Officers, be it the Attorney-General, the Lord Advocate or the Advocate-General. Our contention is that the Law Officer making the reference should also have the responsibility to publish the fact of the reference, whether by publication or on a departmental website, so that it is not left to the Presiding Officer.
Amendments 14 and 15 deal with the publication of the notice, which the Bill currently states should be in the Edinburgh Gazette. To ensure consistency of approach, we suggest adding the London Gazette and the Belfast Gazette to the list of publications in which a reference must be published. That is significant, particularly as we are dealing with issues that are potentially subject to a reference to the Supreme Court.
There has been a lot of talk about the Supreme Court in the past week—it even reached First Minister’s questions last Thursday—whether in connection with the limited references to it, or its being the final port of call for appeals in criminal cases. We need to know exactly what is going on. There has been talk of a number of secret clauses that have been proposed by the Advocate-General. As we understand it, they seek to remove the High Court of Justiciary as the final court of appeal for criminal cases in Scotland and to transfer limited responsibility to the UK Supreme Court. I want to know from the Minister whether those clauses exist. If they do, when will they be introduced? Will this House, as a body of elected representatives from Scotland, have the opportunity to discuss them? Just what will be the general process?
I am not in the fortunate position of having seen those secret clauses, although I know of others who have, and they have caused them concern. However, we are discussing a Bill that has always been described as effecting the most significant transfer of powers since the creation of devolution 10 years ago, but we are doing so under what might be described as a cloak of secrecy. We have not had a chance to see those clauses. Why have they not been introduced? Why have we not had the opportunity to see them, and if they are to be introduced, when will we have the opportunity to debate them?
We have a number of issues with clause 7 that the Minister should consider before we proceed. In effect, it would transfer new, significant and substantial powers to the Law Officers of Scotland. The clause proposes an entirely new mechanism that would allow the Law Officers new responsibilities when it came to legislation, by having the authority to identify provisions in a Scottish Bill that they considered would not be affected by a reference to the Supreme Court. As I am sure we will hear from the Minister, the intention is to allow the Law Officers to refer a part of a Bill to the Supreme Court without affecting the remainder. However, the proposal has come out of nowhere, other than the fevered, exercised minds of the legal establishment in Scotland. It was certainly not considered by the Calman commission, which made no such recommendation. It has simply appeared in the Bill, and I would like to know exactly where it came from.
The proposals in this clause raise a number of issues of principle and practice. There is simply no precedent for such an approach, and it is unclear what the status of the provisions affected by such a reference would be in law. It is for Parliament or the Government to decide when and how to implement legislation, not the courts. The clause re-describes the relationship between the legislature and the Supreme Court, yet it does not respect the separation of those roles. The clause would also allow the Law Officers to be judge and jury when deciding what the “unaffected provisions” were, and so decide which could or could not come into force. As I have said, these are substantial and significant new responsibilities for the Scottish Law Officers.
The proposals in clause 7 could also remove from Parliament and the Government the ability to judge on the overall coherence of legislation, and could have implications for the overall will of Parliament. They would also mean that, in making the call on whether to make a general or limited reference, the Law Officer concerned would need to assess whether the affected provisions were central to the Bill or whether it could proceed to Royal Assent without them. We know from our consideration of this Bill that Parliament considers Bills as a whole. Bills contain packages of measures, and support for a Bill as a whole may rest on the inclusion of matters of interest to Members which are not linked to its drafting. The proposals in clause 7 would create uncertainty and bring into question the status of Scottish Parliament legislation in a quite unacceptable way. They would also allow for changes in the law affecting the responsibilities of the courts and the Law Officers.
The clause is both unnecessary and undesirable, and has the potential to disrupt the good governance of devolved Scotland. I hope that the Minister will take a further look at it, because as it stands we have real difficulties with what is being proposed.
We have heard some unusual contributions from the Scottish National party, in this and other debates, but declaring amendments that the Advocate-General has published on his website to be secret is one of the more extreme. Indeed, I understand that there was an exchange in the Scottish Parliament last week during which, while protesting about the secrecy of the amendments, the First Minister had to concede that he had seen them.
I would agree with the hon. Gentleman that we are debating important issues, in that they relate to the laws and judicial system of Scotland, and that is why, in relation to proposed amendments to section 57(2) of the 1998 Act, the Government have adopted a consultative approach. He will be aware that the Advocate-General set up an advisory group to look into the issue. That group came back with certain views, which led to the formation of the clauses concerned, which are now the subject of further discussion and debate. They are not being moved in Committee in this House and are not part of our consideration of clause 7, and they are not referred to by amendments 13, 14 or 15, standing in the name of the hon. Member for Rutherglen and Hamilton West (Tom Greatrex).
The Scottish Parliament’s Bill Committee has expressed great concern, because it cannot make any judgment on those secret amendments in its legislative consent motion. If those amendments are not to be introduced in Committee in this place, when will they be introduced? When will we, as elected Members, have the opportunity to debate and discuss them? What is the process for introducing those amendments? [Interruption.]
The hon. Member for Midlothian (Mr Hamilton) tempts me to answer that it is a secret, but it is not. Rather, it is part of the full legislative scrutiny of the Bill. As I suggested earlier, and as the Secretary of State’s written ministerial statement suggested, we take the issues raised by the Committee, and the specific issues raised in relation to the clause, very seriously.
It might be helpful for those who are not au fait with all the technicalities if the Minister confirms that these specific clauses are not dealt with in the legislative consent motion that will be debated in the Scottish Parliament on Thursday, and that a further LCM will be required.
That is a helpful intervention, because the LCM that will come before the Scottish Parliament this week relates to the Bill as published, and as scrutinised by that Parliament’s Committee—and also by this House. The LCM the Committee promotes suggests that if there are significant changes to the Bill—and, of course, the proposed amendments to section 57(2) of the 1998 Act would be significant—there would be another legislative consent process with the Scottish Parliament. The Government are clear in that regard. Also, as I understand it, the Scottish Government do not support the LCM promoted by the Committee.
As I have suggested—as have the “secret” ministerial statement the Secretary of State made last week, the “secret” LCM Committee report, and the “secret” clauses that are on the website—the coalition Government are engaged in consultation and dialogue on these clauses. Indeed, so generous are we in that regard, that we will even take on board in our considerations the points the hon. Gentleman makes on these matters, but these amendments are not being moved at this stage. There is a further very significant point, which I would have thought would have satisfied the hon. Gentleman given the respect he has for the Scottish Parliament and its views: a further LCM would be required from the Scottish Parliament if significant amendments were being made in relation to section 57(2).
The hon. Gentleman is very astute: yes, there will be a Scottish Parliament election on 5 May, and, yes, the current Parliament will be dissolved on 22 March. It is therefore very likely that there will be another Scottish Parliament in place, but this coalition Government respect that Parliament and whatever Government emerge of whatever political colour, and we will engage in a constructive dialogue with whoever is in power in Holyrood.
On the Opposition amendments, currently entire Bills of the Scottish Parliament can be delayed, possibly for months, should just a single provision be referred to the Supreme Court to determine whether it is within legislative competence. Clause 7 of this Bill will amend the 1998 Act, not in the nefarious way the hon. Member for Perth and North Perthshire (Pete Wishart) suggests, but in a positive way, to prevent unnecessary delays to Bills where the majority of provisions are considered to be within the competence of the Scottish Parliament. The affected Bill would be submitted for Royal Assent by the Presiding Officer, while the disputed provisions would not come into force until the Supreme Court had reached a decision and Scottish Ministers had made the appropriate commencement order. The UK Government believe this is the most appropriate and sensible method of helping to ensure that the work of the Scottish Parliament runs as smoothly as possible. Members will wish to note that the Scotland Bill Committee in the Scottish Parliament accepted this provision, but asks for consideration to be made of the legislative procedure used. We will review that recommendation carefully.
The amendments would require the Law Officer making the limited reference, in addition to the Presiding Officer, to publish notice of the reference in the Edinburgh Gazette and also in the London Gazette and Belfast Gazette. Clause 7 already requires the Presiding Officer to publish notice of a reference in the Edinburgh Gazette and in such other ways as he considers appropriate. It does not prevent the Presiding Officer from publishing notices in the London Gazette or Belfast Gazette, or in any other paper or on any website, or in any other way he should wish—even secret ones.
The Edinburgh Gazette is one of the few newspapers in Scotland in which the hon. Gentleman does not appear. It is a formal publication in which formal Government, local authority and other governmental notices appear. I understand that it can be subscribed to, although it is not regularly available in most newsagents in Scotland. There is also a person with the title of the Queen’s Printer for Scotland, who may also publish notice of the reference in such ways as they consider appropriate.
I will look into the hon. Gentleman’s specific query and write to him on it.
A requirement on the Law Officer to publish the notice of the reference would lead to three different people being responsible for publishing the same notices, and could be considered overly complicated and unnecessary. I therefore urge the hon. Member for Rutherglen and Hamilton West (Tom Greatrex) to withdraw the amendments and to agree to clause 7. I hope I have been able to ease the concerns of the hon. Member for Perth and North Perthshire in respect of possible future amendments to section 57(2) by confirming that the Advocate-General has set up an expert group to look into the issue, and that the group came forward with proposals that were put into the public domain and shared with the Scottish Government and the Scottish Parliament Bill Committee. They are still under consideration, which is why they are not being introduced into this House; we accept that these are important issues on which there should be full discussion, but that discussion is not yet at a sufficiently advanced stage for it to be appropriate to introduce amendments. On that basis, I commend clause 7 as it stands to the House.
I am disappointed in some of the Minister’s responses. I am aware that there is no preclusion on publication in the London Gazette or Belfast Gazette, but, in the interest of transparency, it would be a step forward if the publication were extended, particularly given the issues under consideration. He also rightly said that this means that at least two people have responsibility and perhaps we may consider a further amendment subsequently to deal with that point.
I had an inkling that the hon. Member for Perth and North Perthshire (Pete Wishart) would discuss the secret amendments. Although the Minister may have had a bit of fun about the definition of “secret”, they suggest that a lack of thought went into the processes that the Government have followed. If they wanted to avoid some of the hyperbolic language from the MSP who spoke to the Scottish Affairs Committee last week or the week before, it may have been sensible for them to have published those draft amendments, to have had a short consultation on them and then to have introduced them to the Bill at the right time. Scrutinising the Bill is very important and although there will be an opportunity to come back to those amendments, it would have been much better if we had seen them by now and been able to discuss them in this Committee. I reserve the right to come back to my amendments on Report, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 ordered to stand part of the Bill.
Clauses 8 and 9 ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 10 ordered to stand part of the Bill.
With this it will be convenient to discuss the following:
Amendment 38, page 7, line 26, after ‘air weapons’, insert
“below a muzzle energy of 6 ft/lbs”.
Amendment 3, page 7, line 27, leave out from ‘1968’ to end of line 34.
Amendment 18, page 7, line 34, at end add—
‘(1A) The Secretary of State shall have the power to issue regulations to deal with any cross-border issues arising from the operation of this section including but not limited to issues arising from the transport of air weapons from, or their use in, Scotland and England and Wales.’.
Amendment 39, page 7, line 34, at end add—
‘(2) The use or possession of air weapons as defined in subsection (1) above which were acquired before the coming into force of any Act or other legislative instrument of the Scottish Parliament made as a result of this section shall until then continue to be subject to any regulations made under the Firearms Acts 1968 to 1997.’.
Clause stand part.
There has been much discussion of this issue and I know that many hon. Members wish to contribute to this part of our consideration today, so I shall keep my remarks brief. This emotive issue was considered in detail by the Calman commission and I know from my own experience that lengthy discussion has taken place involving the Scotland Office, the Home Office and, on various occasions, the Scottish Government on issues associated with the control of air weapons. The current definition of “air weapons” has often been raised and I was slightly surprised to see that the Bill uses the 1968 definition, because an issue had previously arisen regarding the proper definition of “air weapons”. I am sure that other hon. Members will deal with that in greater detail. I took the opportunity at today’s Home Office questions to ask the Home Secretary when she planned to review that definition and one of her Ministers said that he was not sure but he would come back to me on it at some point. We need to be confident that the definition is appropriate in respect of what the Calman commission recommended on air weapons and therefore what the Bill tries to do.
Amendments 17 and 18 do not relate to that issue but are probing amendments dealing with a couple of specific areas, one of which is the treatment of air weapons for recognised sporting events and what happens when people travel to the Commonwealth games or another event through England and into Scotland. Amendment 18 deals with cross-border issues—for example, what happens when an airgun is licensed in Scotland but not in England and someone from England takes a weapon without a licence north of the border. The Minister represents a rural constituency on the border, so I am sure he will be aware of the potential for some of these issues to arise. The amendment seeks to ensure that there is a mechanism to deal with any of those issues. I am well aware that other hon. Members wish to discuss this matter in much more detail, so I shall draw my comments to a close.
I wish to speak to my amendments 38 and 39. I do so as chairman of the all-party group on shooting and conservation, the secretariat for which is provided by the British Association for Shooting and Conservation, the specialist shooting body. The BASC has briefed me on these matters and I took some of its members to see the Secretary of State last week, when they were able to put the technical arguments against this matter being included in the Bill and thus becoming a devolved matter. I shall use the latitude that the clause stand part debate provides to make that argument, as well as the one for my two amendments.
My two amendments are straightforward. Amendment 38 seeks to withdraw all but the least powerful air weapons from these arrangements. Amendment 39 goes some way towards dealing with the cross-border issues that the hon. Member for Rutherglen and Hamilton West (Tom Greatrex) described and with the issue of weapons being legal in England and Wales but becoming illegal in Scotland if the matter were devolved and the Scottish Parliament were to use its powers under the Bill.
In arguing against this becoming a devolved matter, it might be useful if I put the whole thing into context. Shooting contributes £240 million to the Scottish economy and airguns are the entry point into the sport. It is estimated that there are some 500,000 airguns in Scotland, compared with 4 million to 7 million in the UK as a whole. They are owned for a variety of lawful purposes, such as target shooting and pest control. The majority of airguns do not carry any serial or other identifying number, and very few need to be held on the authority of a firearms certificate because their capacity is below 12 ft/lbs. The location of nearly all current owners is unknown.
Some 52% of all Scottish airgun crime takes place in the Strathclyde police area and this appears to be an urban problem, rather than a countrywide problem. The call in this Bill for the devolution of airgun legislation has been made following the tragic death of two-year-old Andrew Morton, who was shot with an airgun by 27-year-old Mark Bonini, a drug user from Glasgow. The subsequent tabloid outrage and a campaign by the Scottish nationalists has resulted in a “Scottish appetite” for airgun legislation to be devolved, despite the fact that the current criminal justice system worked by sentencing Mark Bonini to life imprisonment.
There is therefore really no need for any further amendments to the firearms legislation. Numerous pieces of legislation are available to the police across Great Britain to deal with the misuse of airguns and three further pieces of airgun legislation have recently been passed by Westminster: the Anti-social Behaviour Act 2003, the Violent Crime Reduction Act 2006, and the Crime and Security Act 2010. The Scottish police can also use the offence of reckless discharge, which is not available south of the border.
The hon. Gentleman said that 50% of these incidents took place in the Strathclyde police area and that there was some sort of link with this being an urban crime, not a rural one. Given that the Strathclyde police area stretches from the Dumfriesshire border with Ayrshire into the lowlands of the highlands, I am puzzled as to how he makes that link between urban crime and the Strathclyde police area.
It comes from the number of offences that have been reported—no more, no less. The average number of Scottish airgun offences per annum since 1996 is 565 and the number of incidents has been falling since 2006-07.
The apparent rise in the use of airguns is likely to be the result of improved police reporting procedures, but other weapons, especially knives, are much more likely to be used in homicide offences in Scotland and, indeed, elsewhere. There is nothing peculiarly Scottish about airgun controls or crime, so there is no justification for creating a system for Scotland that differs from the current regime in England. It is not enough for Ministers to wash their hands of it on the ground that the democratic process will produce the right answer. The campaign for the devolution of powers regarding airguns has been fuelled by tabloid scaremongering such as that around the recent incident in Auchinleck in Ayrshire. It was initially reported that 18 schoolchildren had been shot by a sniper armed with an airgun equipped with a muzzle, but it later turned out that eight children had been hit by plastic pellets from a BB toy gun.
The coalition has rightly resolutely opposed knee-jerk legislation on firearms that is not based on sound evidence. The Calman commission produced no argument for devolving powers on airguns beyond the statement that
“there is appetite to deal with airguns differently in Scotland.”
I submit to the Minister that that is not a good basis for legislating on this matter. The commission produced no evidence to back that up.
The coalition has advocated having easily understood legislation that protects public safety, whichever part of the United Kingdom one comes from. Public safety is endangered by complex firearms laws, and having a different regime for airguns in Scotland will increase the complexity of firearms laws. Devolving power over airguns will destroy the internal logic of firearms legislation as a reserve power and will fuel calls for the devolution of all firearms law, which I note the Bill specifically does not do; all the most serious firearms legislation is still reserved to the United Kingdom Parliament. There are already 36 offences that can be applied in relation to airgun misuse. The most recent legislation—the requirement in the Crime and Security Act 2010 to ensure that children do not have unrestricted access to airguns—came into effect only last month.
There is good evidence to suggest that increased powers, proper enforcement and education are behind the fall in airgun misuse that is most pronounced north of the border. The Government and Parliament are in the middle of a review of firearms legislation in the wake of Whitehaven, and Parliament is awaiting a response from the Home Office to the Select Committee on Home Affairs report on firearms. Devolving power over airguns in Scotland would be premature, would ignore the wider review and would mean having piecemeal legislation on firearms in response to outrage, which would damage effective legislation and enforcement. The Association of Chief Police Officers in Scotland has stated that
“in the ideal world, for the sake of lack of confusion…one set of legislation would be the best option”,
and that, given the number of airguns in circulation,
“in relation to cost and resources from a policing perspective, there would be a definitive impact”.
It has also said that regulating airguns in Scotland could be difficult and costly. It stated:
“Ideally, we would prefer them to come under the Firearms Act”—
that of 1968, to which the hon. Member for Rutherglen and Hamilton West referred, and that of 1997, in particular, both of which are referred to in my amendment—
“so we don’t have two sets of rules.”
If a licensing system of air weapons was introduced, it would have a disproportionate effect on the operational capacity of the Scottish police forces. As I have said, they would not have the time or the manpower to deal with the issue properly. The new work load would require a serious displacement of staff from other more important fields such as crime prevention and detection. Any change to laws on airgun ownership proposed by the Scottish Government could criminalise an estimated 500,000 law-abiding airgun owners in Scotland overnight. The consequences of any change in controls over air weapons in Scotland would not be confined to Scotland, but no consultations have been launched to canvass the opinions of people in England and Wales who might be affected by such changes when they travel over the border. Any ban on air weapon ownership imposed by the Scottish Government would adversely affect trade and would lead to a significant bill for compensation for those who legitimately own air weapons. Is the Minister going to pay compensation to those people who suddenly find themselves with illegal weapons, or will the weapons simply become useless, in which case those people will lose out considerably?
The absence of border controls between Scotland, England and Wales is likely to lead to non-compliance. If the Minister doubts that, let me cite an example. Since the 2004 English ban on self-contained air cartridge firearms, which are often called Brococks, of the 70,000 estimated to be in circulation, less than 10% have been registered, so there is widespread breaking of the law, but few people that I know of have been prosecuted because it simply is not possible to find them. Major restriction on air weapon ownership would make it impossible for Scotland to host the Commonwealth games or other major sporting events, as the hon. Member for Rutherglen and Hamilton West pointed out.
Let me put my suggestions and alternatives to the Minister and then I will conclude. Education is having an impact. BASC, which I have mentioned, runs “young shots” days, and the Scottish Countryside Alliance offers next-generation days, at which BASC Scotland provides airgun and shotgun tuition to teach and remind many hundreds of youngsters about the safe and proper way to use airguns—something to which we would all subscribe. We should continue to encourage the police to circulate BASC’s airgun codes of practice, which already reach tens of thousands of people, and focus on enforcing existing law. We should also encourage people to try target shooting with airguns at clubs so that people of all ages can learn about the safe use of airguns in a controlled environment by qualified instructors and realise that airguns are capable of inflicting a lethal injury if misused.
I have to say to the Minister that I think the whole airgun issue has been driven by a tabloid press feeding frenzy on one or two incidents. I understand that, and the same thing would happen if those incidents occurred in England.
The hon. Gentleman mentions the tabloid press. I am sure he is aware that in the past week or so, the tabloid press have had a feeding frenzy about two football coaches in Glasgow falling out with each other, but there does not seem to have been the same feeding frenzy about an England football player taking an air weapon to a training ground and shooting someone.
I welcome that intervention. I take any infringement of airgun law very seriously indeed. Anyone who has an airgun, firearm or shotgun should use it safely and according to the law. I do not diminish incidents when they happen; I am merely saying that whether they happened in Scotland or England there would be the same tabloid coverage. I simply say, in all seriousness to all concerned, that I think we are better with one set of UK-wide firearms legislation, given that this is such a serious subject, so that everyone who uses a firearm of any sort, whether a shotgun, airgun or licensed firearm, knows exactly what the law is. Having different laws in the Principalities of the United Kingdom will lead to trouble.
Doing things differently in Scotland from the rest of the United Kingdom is what we call devolution, and I say to the hon. Member for The Cotswolds (Geoffrey Clifton-Brown) that we make no apologies for representing our constituencies and communities. If this is the legislation that our communities want, it is up to us as their elected Members to secure it.
I strongly welcome the clause and I congratulate the Calman parties on introducing it. It is one of the few examples in the Bill of a real and positive transfer of powers from the Scotland Office to Scottish Ministers, in recognition of the very significant and different issues in Scotland. The hon. Member for The Cotswolds mentioned the tragic incident in 2005 when young Andrew Morton lost his life at the hands of someone with an airgun. It was not the tabloid press but his parents who started a remarkable campaign to bring the issue to public attention, and they were supported in that cause by politicians, civic groups and everyone who took an interest in the subject.
I worry when a Scottish National party Member accepts the kind of smear on Scotland that the hon. Member for The Cotswolds (Geoffrey Clifton-Brown) made. If we look at the press in England, we see there has been a succession of shootings and killings using handguns, not airguns, in and around the cities of England. The seriousness of the issue of deaths being caused by those carrying firearms is much greater in England than in Scotland, so let us not get things out of perspective.
I will come to the issue of firearms, which is central to our amendment, in order that we can, in Scotland, have responsibility for firearms, as well as for air weapons, which are, as we all acknowledge, a significant problem in our community. It is important that we have legislative responsibility for all such weapons in Scotland so that we can make our own laws, not just in regard to airguns, but in regard to all serious weapons.
A fantastic campaign led to calls for Scotland to secure legislative competence for airguns, which we are doing today. It led to the Cabinet Secretary for Justice, Kenny MacAskill, writing to Jacqui Smith several years ago to ask that Scotland be considered as a pilot area for the licensing of airguns, and subsequently to a summit of all stakeholders to consider the problem in Scotland and propose a way of dealing with it. Many interesting issues were explored at that firearms summit. The Scottish Government went as far as publishing the necessary parliamentary order to transfer the power quickly so that they could start to deal with the issue in Scotland.
Why do we want legislative competence? I have explained why we think the situation in Scotland is different and why Scotland needs the power, but what we can do with it? This might satisfy the hon. Member for The Cotswolds about our intentions: it is not about trying to stop sporting events or getting in the way of the Commonwealth games. That is nonsense. They will go ahead. Many constituents of mine enjoy and participate in events with all manner of rifles and I have no problem with that.
The power would allow us to examine the issue seriously. The intention is to put together a Scottish firearms consultative panel involving all the key stakeholders to establish a range of views on the issue. One of its first tasks would be to develop and consider the merits of a pilot licensing scheme for air weapons. This would enable the Scottish Government to test the practicalities of air weapon licensing. It would also test whether air weapon licensing can operate effectively without wider reform of the firearms legislation. A pilot could take place in one or more areas in Scotland.
Our strong view, as I said to the hon. Member for Linlithgow and East Falkirk (Michael Connarty), is that air weapons are only part of the story when it comes to dangerous weapons in Scotland. At the firearms summit in 2008 there was clear agreement that the current firearms legislation is not fit for purpose. Something must be done to improve the situation. It needs to be comprehensively reviewed. I accept that a review is taking place and we will wait to see its conclusions, but we need action. If that cannot happen at UK level, and if the legislation is not satisfactory, we insist that firearms legislation control be handed to the Scottish Government so that we can make our own decisions about this critical issue.
The hon. Gentleman speaks about dangerous weapons. As he knows, more people are killed in Scotland by knives than by guns of any kind. Since its inception, the Scottish Parliament has had full control over knives, yet that problem has not been resolved. Will he clarify for me why he has such touching faith that simply transferring control over air weapons to Scotland will resolve the matter, when having full power over knives has not done so?
I am grateful to the hon. Gentleman for raising the topic of knives. I am sure he would be the first to congratulate the Scottish Government on reducing the number of knife-related incidents in Scotland in the past few years. It is a remarkable achievement that in four years of SNP government, we have made real progress in reducing knife crime significantly.
The hon. Gentleman seems to be arguing that he wants to go further than the Bill by devolving all firearms legislation to Scotland. The Scottish Bill Committee, in which he placed so much faith at the beginning of the proceedings, was split on the vote. Clearly, it is not the overwhelming opinion in Scotland that all firearms legislation ought to be devolved.
It would be helpful if the hon. Gentleman defined who “our” is. As he knows, the Scottish Government have tabled their own draft legislative consent motion in the Scottish Parliament, in which they agree with the clause and do not suggest that there should be any further devolution of powers in relation to air weapons.
As I said at the start of my remarks, we welcome the clause. It is a real transfer of power—one of the few transfers of powers in the Bill. Of course we support the clause. I have argued consistently that our intention is to improve and strengthen the Bill to deal with some important issues. If our amendment is accepted, we have an opportunity to deal not only with air weapons, but with firearms in their totality. Surely that is a better situation to be in than having responsibility for just one aspect.
I do not want to be picky, but in the LCM that the Scottish Government have lodged, they suggest a significant number of amendments to the Bill and state their views on re-reservation and so on, but they are clear that they support the clause as it stands.
Indeed, we do support the clause as it stands. I know that the right hon. Gentleman is an astute follower of what happens in the Scottish Parliament, so he will have heard Kenny MacAskill and other colleagues saying on several occasions that what we require in Scotland is full control over all firearms legislation. That was the outcome of the summit held back in 2008 and that is what we seek to achieve this evening. We can achieve it. All we need to do is get the Committee to support us on amendment 3 this evening.
Will the hon. Gentleman explain how that would operate? I deal with firearms quite a lot in my constituency. I would like to hear what the difference would be if legislative control were transferred. The regime is very strictly run by the police, and the laws encompass everyone in the UK.
I am about to come to that. Let me explain first what we are trying to achieve with the amendment, and I will then deal with the hon. Gentleman’s wider point. He may intervene again if he feels that he is not getting a satisfactory response.
Our amendment deletes a small section that states that power over the control of “specially dangerous” weapons remains with the Secretary of State. It ensures that the Scottish Parliament will have the power to legislate for all air weapons, including the “specially dangerous” weapons that require a firearms certificate. The Bill as it stands includes a power for the Secretary of State to designate “specially dangerous” air weapons, which would then fall under the reserved regime that applies to all other firearms. In that case, the power would lie with the UK Government and Ministers and would not be subject to any approval from Scottish Ministers or the Scottish Parliament.
We therefore propose that the relevant power be exercised with the consent of the Scottish Parliament, even if it is not transferred. We believe that this is important because there are different and distinct issues relating to firearms in Scotland. I do not want to mention specifically all the tragedies that have taken place. We have only to recall Dunblane several years ago to recognise the very real issues that we have in Scotland involving firearms. It would be much more sensible for all firearms to be under one control in one central point. Scottish police forces have taken great interest in our plea and they would be interested in developing and exercising it.
We want to avoid complication. Our amendment would devolve legislative competence for all air weapons to the Scottish Parliament. I intend to press the amendment to a Division because it is important. This is one of the few opportunities that we will get to improve the Bill significantly and ensure that all weapons are included in it. It is a small measure designed to improve the Bill, as we said we would, and I urge the entire Committee to support it.
I welcome the opportunity to make a contribution to this part of the debate. I hope it will be one based on the experience of representing an area that has had its fair share of difficulties with airguns, and of four years as the Justice Minister in Scotland, including at the time of the incident that has been referred to when a toddler lost his life in the east end of Glasgow as a result of an air weapon. Far from responding to any media frenzy, I hope that I was able as a politician to respond to the real tragedy for people in the local community, not least the child’s parents, who witnessed the event and had to deal with the consequences.
At that point, when there were demands for an immediate, all-out ban on air weapons, I took the view that we should take a considered approach that looked at the evidence and brought together the police and other organisations. At that stage I met a number of those organisations. I believed that it was best to deal with the situation not through a piecemeal approach, but by working with the UK Government to secure changes on sentencing and tightening the legislation, which we did, and with a view to looking at how a licensing regime could operate in Scotland in future. I welcome the clause that will give the Scottish Parliament the opportunity to do something about this.
Let me make a few comments to clear up some misunderstandings about the types of areas where there have been incidents with air weapons. The hon. Member for The Cotswolds (Geoffrey Clifton-Brown) said that most of these incidents occur in the Strathclyde region. If he looks at a map of the Strathclyde region, he will see its size and scale and note that it takes in not only cities and large towns, but small towns, rural areas, remote rural areas, islands and everything in between. It is not entirely accurate to suggest that because the figures relate largely to Strathclyde it is not a problem for the rest of Scotland. Indeed, the opposite could be argued; the region takes up so much of Scotland that if it is a problem there, we can be pretty sure that it is a problem elsewhere.
The hon. Member for The Cotswolds also mentioned an incident that occurred only a couple of weeks ago in Auchinleck, which is in my constituency. Of course, not absolutely everything that appears in the tabloid press is 100% accurate. Only a few weeks ago there was some interesting reporting of a junior football match between Auchinleck Talbot and Cumnock Juniors that suggested that mounted police were involved in something akin to the charge of the Light Brigade. A constituent suggested to me that when the horses came on to the pitch it was more like dressage than a charge, so I understand that things can be exaggerated. However, in an era of mobile phones and 24-hour news, I also understand that any incident witnessed in a local community is likely to get into the public domain quickly, as people will report it to newspapers or online, perhaps on Facebook. Indeed, that is where many of my constituents first heard about the incident in Auchinleck.
Does the hon. Lady share my experience that the abuse of air weapons often involves not only the cases that make the newspapers, but the distressing circumstances of much-loved family pets being injured or killed when shot at? Those stories never make the headlines, but they nevertheless cause great distress in communities.
I absolutely agree. Of course, those are the types of incidents that local newspapers report far more regularly than national newspapers.
Information about the incident in Auchinleck quickly got into the public domain, some of which was not absolutely accurate. A number of school pupils were injured, albeit by what the hon. Member for The Cotswolds described as a toy BB gun—I have more to say on that in a moment—and required hospital treatment, so I hope that he is not suggesting that it is not necessary to have a serious look at how that gun got into the hands of the people who used it, what they were doing with it and why they became involved in such an incident. To be honest, I recognise where he is coming from in relation to his sporting and shooting interests, but I find it difficult to understand in any event why anyone living in an urban environment would require an air weapon in their home. It is time we looked at the issue, and I hope that that is something a licensing or other regime in Scotland could deal with.
I want to say something about firearms in general. I accept many of the points made by the hon. Member for Perth and North Perthshire (Pete Wishart), but I do not believe that at this stage we require responsibility for the whole range of firearms legislation to be devolved to the Scottish Parliament. However, I do think that it is incumbent on the UK Government—perhaps the Minister will indicate what discussions he will have or has had with Home Office colleagues—to ensure that the provisions of the 1968 Act still stand the test of time. The worst possible thing that could happen is that we devolve something and discover subsequently that we will have to revisit it, for example if the definition of what constitutes an airgun is no longer seen to meet the needs of the legislation we are devolving.
I want to say something on BB guns, because I know that in many instances they are the weapons—I use the word “weapons” rather than “toys” because of the damage they can inflict—that cause exactly the problems that the hon. Member for Banff and Buchan (Dr Whiteford) identified. I also believe that there is a gap in the legislation, because those weapons appear to be easily available, particularly to children and young people. The fact that they are not covered by legislation sends entirely the wrong message. I would be interested to hear whether the Minister will have discussions with his Home Office colleagues to take that forward.
I appreciate that other Members want to comment in the debate and so do not intend to speak for much longer. I feel that the time is right, and I have given the matter careful consideration because my initial response when Justice Minister, as I have said, was that we should not legislate or press for legislation in haste. It is four years since that time, and considerably longer since the incident in Easterhouse, so no one could accuse us of legislating in haste when we take these measures forward.
The hon. Lady is making a cogent and reasonable case, and I am interested to hear what she has to say as a former Justice Minister. In the Andrew Morton case, as I said in my contribution, Mark Bonini was sentenced to life imprisonment, so what does she think it is about the current laws that is not working and needs to be modified?
I hear what the hon. Gentleman says, but I say to him gently that the people of Easterhouse, and perhaps people more widely in Scotland, feel that legislation that would prevent someone like that from having an air weapon in their home in the middle of Easterhouse would be of assistance. That is why there is strong support in Scotland for a ban on air weapons. That is not the province of any particularly political party, but something that has united people across political organisations and local communities.
I said that it is not about legislating in haste. I believe that the time has come to look at how we can ensure that no other family goes through the same trauma as did the family in Easterhouse, but we will do that by having workable legislation. I end on a note of caution, because there are a number of areas where I think a great deal of further work needs to be done to ensure, for example, that the cross-border issues are manageable. We need to look at that in detail. It is entirely possible to look at exemptions for sporting activity, and I know from my previous experience in the Scottish Parliament that fruitful discussions were held, and I am sure continue to be held, on the transport and use of guns for sporting activities. This should not be the end of the matter. If the proposal is included and the Bill passed, it will be a stepping stone on a journey to ensure that, wherever possible, we avoid such incidents as have been described and are able to look at how best the existing firearms legislation throughout, importantly, the United Kingdom can be strengthened. In particular, I make the plea, which I shall repeat when the review reports, for the careful consideration of including in legislation BB guns and weapons like that to ensure that they do not fall into the wrong hands.
I am delighted to follow my hon. Friend the Member for Kilmarnock and Loudoun (Cathy Jamieson). For those colleagues who are not aware of her work as a Justice Minister, I hope that they will see what she managed to do when she held that difficult position and airguns became a major issue in Scotland. I acknowledge what she did.
I fear that the hon. Member for The Cotswolds (Geoffrey Clifton-Brown), for whom many in the House have great respect, has taken a big hit tonight, because in prosecuting his case he fails to understand that the issue of air weapons is slightly different in Scotland. That is why we feel it important to allow the Scottish Parliament to regulate air weapons in Scotland. I, like the hon. Member for Perth and North Perthshire (Pete Wishart), have a large rural constituency, and I have had no correspondence—letters or e-mails— at all on the issue, yet many in my constituency see air weapons as part of an introduction to country sports, and I fully recognise that.
I fear also that the hon. Member for The Cotswolds anticipates what a Scottish Parliament might do with such powers, but he has to recognise that it has Members with urban constituencies and many with rural constituencies, and they will take into account the balances that have to be struck to ensure that they do not undermine a way of life or an activity that is important to many communities in Scotland.
When the legislation banning handguns was passed in 1997, one argument was that it would undermine sporting activity. That has not happened, because in that legislation we ensured that there was a tight regime and that any sporting activity was conducted in a safe context. That is what we are asking for in the Bill before us, because the debate has thrown up some issues that could cause confusion if they are not attended to properly.
I agree with my hon. Friend the Member for Kilmarnock and Loudoun that we need to be clear about what we are doing in passing this element of the Bill. Indeed, on Second Reading, I asked the Minister whether he had consulted his colleagues in the Home Office to ensure that we had the definitions right and did not allow some air weapons to fall outside the legislation. I should still be interested to know what discussions he or his departmental colleagues have had with the Home Office to ensure that we get the definitions right.
I fully support the probing amendments that my hon. Friend the Member for Rutherglen and Hamilton West (Tom Greatrex) has tabled, because the issue is not just about passing this element of the Bill, but about instilling in the House the confidence that, in passing the legislation, we have in place all the other elements that are required to make it an effective piece of devolution, while maintaining safety both north and south of the border and not allowing for any confusion, which might exist if we do not get the legislation right for those people who, as the Minister will know, cross the border regularly. I hope that he will deal with the specific issues that have been raised. This is an issue not of principle, but of detail, and I hope that he will be able to give us some assurances this evening.
I approach the issue from a slightly different position. I support clause 11, because it is sensible to route such decisions to the Scottish Government, and amendments 17 and 18, which I hope the Government will take on board. Strangely, in a Committee of the whole House, Members do not necessarily receive from the Government the moderate responses that they would if they were in Committee off the Floor of the House and outwith the view of the television cameras. Often, Ministers see the sense in amendments and accept them, but this is a much more public arena, so we might not get from the Government Front Bencher tonight the sensible response that we would have had if we had been off the Floor of the House. That is one of the problems of this theatre, as some people regard the Chamber.
I have had to handle many matters to do with guns—to do with normal firearms—because there is quite a large shooting fraternity in my constituency. My constituency is mostly urban, but it has a rural hinterland where people shoot in clubs, to get rid of vermin, which is what farmers consider rabbits to be, and they go further north to shoot deer. It is an urban environment, and with reference to the remarks of my good Friend the Member for Kilmarnock and Loudoun (Cathy Jamieson), strangely, where somebody lives does not necessarily determine whether it is right for them to have a weapon of any kind; the question is what they are going to use it for, whether it is properly secured and whether they are properly licensed, controlled and monitored by the police.
I hope that in this Bill we are giving to the Scottish Parliament the power to think about—in keeping the whole thing in perspective—what I would call regulation rather than prohibition. The hon. Member for The Cotswolds (Geoffrey Clifton-Brown) is partly concerned by the idea, whipped up by whomever, for whatever reasons and with the aid of whatever quality press, that we are talking about—and we do use the phrase—a ban on airguns in Scotland. I hope that that is not the case, and we are not talking about someone running such a campaign.
The problem with prohibition, which was very well exhibited in the USA when they tried to ban alcoholic drink, is that the banned item just goes underground. In that situation, weapons would not only be used but traded, and unfortunately a large number of illicit users might misuse them, so I hope that the Scottish Government are sensibly thinking about a regulatory regime for air weapons. People say that a licensing scheme will cost so much money that it will be easier or, certainly, cheaper to introduce a ban, but I hope that in Scotland there is a sense of perspective, so that the issue, when it is transferred, will be about regulation, not prohibition.
That is not at all to diminish the serious effects of the deranged misuse of such weapons. The hon. Member for Banff and Buchan (Dr Whiteford) was right to point out that a lot of damage is done by misuse, particularly to domestic animals in our communities. I am sure that it does not happen just in communities in Scotland, either, and that the hon. Member for The Cotswolds did not mean to smear the good name of urban communities in Scotland, because we know of the terrible catalogue of murders by people using guns—firearms, not airguns—in England. I am sure that airguns are misused a lot in communities in England.
The hon. Gentleman has been a Member for a long time and, in fact, as long as I have. I did not in any way mean to smear the people of Scotland, as he has inferred from my remarks; that was not what I said at all. Does he, in turn, recognise that the vast majority of firearms offences and, indeed, airgun offences are carried out by unlicensed users? We can have in place whatever regime we like, but those offences will still occur from time to time.
I wish that we could expunge from the memories of the people of Scotland, particularly central Scotland, the fact that a licensed gun owner used guns that were then allowed to create the carnage at Dunblane. It is not wrong to say that by regulating and banning the possession of handguns we did something very positive. There are times when controls are needed. In the United States of America, people can buy what are basically machine guns over the counter; we cannot, thank goodness. This obviously has a lot to do with the person who misuses the weapon, but it is also about its availability in the first place.
I hope that whatever regime is introduced in Scotland will be strict. A regular firearm user who is a hunter recently came to see me about relicensing and could show me that they had a strongroom that was totally secure, which meant that access to their guns would be very difficult for anyone. Their licence was approved by the local police, and it was a very thorough operation. I do not know whether that operation could be replicated for airguns, but that would stop a lot of the illicit possession. It is much easier for the local community around the area to know that someone is misusing such a gun if they possess it without a licence, in a similar way as applies to the possession of ordinary guns. I hope that my hon. Friend the Member for Kilmarnock and Loudoun agrees with that.
I hope that the Minister is listening to the support for these small amendments, which are useful and helpful. With apologies to those who aspire to have this in Scotland because we are Scottish, there are some serious types of airguns that should be licensed universally on an all-UK basis. That will not undermine the ability of our communities to know that people who have unlicensed airguns can be immediately notified to the police to have those firearms removed.
I welcome you to the Chair, Mr Benton.
I can assure the hon. Member for Linlithgow and East Falkirk (Michael Connarty) that nothing that the Government put forward this evening is in any way determined by the fact that these proceedings are televised. I hope that we are bringing forward a reasoned response to important issues that have been raised in the debate on these amendments.
I wanted, during this discussion, to clarify the SNP’s position, and I am sure that the hon. Member for Perth and North Perthshire (Pete Wishart) will understand why. I think that the logical explanation is that we now have devolution in the SNP, with a London SNP that is proposing an amendment to clause 11 and an Edinburgh SNP that is in agreement with it as it stands. In those circumstances, I find it extremely odd that the hon. Gentleman suggested that he was going to push this matter to a Division. He will have seen the Scottish Parliament’s Scotland Bill Committee report, which, in paragraphs 142 to 144, confirms that it was a unanimous view of that Committee that clause 11 should be supported. It states:
“We note that this excludes those air rifles, air guns or air pistols which are of a type declared by rules made by the Secretary of State under section 53 of the 1968 Act to be ‘specially dangerous’. These particular weapons are already banned and we see no reason why this would change.”
The Committee went on unanimously to recommend support for clause 11.
I have here a copy of the Scotland Bill Committee report, which came out last week. If the right hon. Gentleman looks at paragraph 142 and the footnote attached to it, he will see that in fact there was a division on that point and the view was not unanimous at all.
The hon. Lady will also be aware of the text of the LCM to be put forward by the Scottish Government. Her Scottish Parliament colleague, Fiona Hyslop, kindly sent it to me, listing several clauses to which the Scottish Government want changes made. Clause 11 is clearly stated not to be one of them.
This is not good enough. The Minister said that the Bill Committee was unanimous, but the footnote makes it clear that it was not—there was a division and a split vote. Will he now take the opportunity to correct what he said so that the Committee is not inadvertently misled by his earlier remarks?
I certainly would not want the Committee to be misled by anything that I said. I referred to the paragraphs in the Scotland Bill Committee report, where it is clear that the Committee formed the view that it did. It is also clear that the Scottish Government have come forward with an LCM that supports this clause as it stands.
Clause 11 devolves a power to the Scottish Parliament in relation to the regulation of air weapons. This would enable the Scottish Parliament to legislate, if it wished, to create a separate regulatory regime for air weapons in Scotland. Members will wish to note that, as I said, the Bill Committee in the Scottish Parliament accepted the provision, and we wait to see the outcome of the debate on its LCM and the LCM proposed by the Scottish Government.
After careful consideration, the Calman commission concluded that firearms law should not be devolved in full. It is generally acknowledged that the UK already has some of the toughest firearm controls in the world and that the current unified regime represents the best way of tackling the problems that exist in relation to armed crime. The commission did recommend devolving power over a specific category—air weapons. The Government agree with this recommendation. Air weapons are the type of guns most often involved in firearms offences, and given the nature of their misuse most frequently to cause criminal damage, as we have heard, they are best controlled at the level closest to those affected. Reference was made to the specifics of the recent incident in Auchinleck, which demonstrated and reaffirmed the continuing concern in Scotland about the use of air weapons.
The hon. Lady makes an important point that also relates to the concerns of my hon. Friend the Member for The Cotswolds (Geoffrey Clifton-Brown). In fact, passing the clause will not in itself ban air weapons of the category defined in Scotland. That is a point that I want to make to my hon. Friend.
The Scottish Parliament will be able to enact a complete ban on air weapons that fall within the definition. The important point for colleagues such as my hon. Friend is that those who do not agree with that course of action will be able to argue their case in the Scottish Parliament. The hon. Member for Kilmarnock and Loudoun (Cathy Jamieson) set out a strong case on the basis of her considerable experience, respected views and strong beliefs. I felt that my hon. Friend also set out a strong view, although Opposition Members and indeed Members of my party in the Scottish Parliament might not subscribe to it. It is important that people who hold such views move the argument on to the Scottish Parliament if the clause is agreed to, because that is the appropriate place for the debate to take place.
Will the Minister clarify the other point that he made? If I understood him correctly, he said that the air weapons that are not covered by the Bill, which the SNP is trying to amend so that they have power over such weapons, are already banned. The only thing that could be done differently would be to unban them. The SNP is therefore asking for the power to unban weapons that are banned. Is that correct?
Does my hon. Friend agree that it would make a nonsense of all firearms laws if the Scottish Parliament banned air weapons completely, because people would still have legitimate licences for serious firearms, while airguns would be banned? Does he agree that that would be a complete anomaly?
I do not accept that it is inevitable that the clause or the Bill will lead to an anomalous situation. As I have said, it is for those who advocate a ban to make their case and for those who believe that it would be a retrograde step to make theirs.
As the hon. Member for Kilmarnock and Loudoun said of her time as Justice Minister—I am sure this is also the case with the current Justice Minister—the Scottish Government need to have a close working relationship with the Home Office and the Home Secretary to ensure that there is a coherent interlinking of the measures determined here and in Scotland, just as with any devolved matter. I assure the right hon. Member for Stirling (Mrs McGuire) that there have been discussions on all aspects of the Bill with the relevant Departments. The Secretary of State for Scotland has met the Home Secretary. We are clear that the clause will provide the Scottish Parliament with the powers it needs to deal with air weapons, as proposed by the Calman commission.
The hon. Lady has just under three weeks to raise that issue in the Scottish Parliament in her capacity as a Member of that Parliament. On a UK basis, I am happy to undertake to raise with the Home Secretary the concerns that she has set out this evening.
My understanding is that the Scottish Parliament would at this stage be able to take forward its own proposals in relation to a gun or implement of that type. As I understand it, we are not at the stage of having a definition for the weapon in relation to the incident, but there are implements of that nature for which the Scottish Parliament already has the power to make provision, as the hon. Gentleman knows.
There are definitions in the 1968 Act of certain weapons. A BB gun is not defined as a type of gun in that regard. It would be within the remit of the Scottish Parliament to make provisions in that regard as part of its ongoing responsibilities.
The clause will allow the Scottish Parliament the freedom to design its own controls over air weapons, while allowing the UK Government to retain a consistent regulatory framework across the UK for the most dangerous weapons. That will send the clear signal that the UK does not tolerate deadly weapons. As I have said, it is important to note that we are considering not what law on air weapons should apply in Scotland, but who should be responsible for taking that decision. The clause will not automatically create a separate regime in Scotland, but it will give the Scottish Parliament responsibility for that decision. Any consideration of an alternative regime will require the Scottish Government, the Scottish Parliament and other stakeholders to listen to all the views represented in Scotland and, crucially, to work through any cross-border issues that arise.
Amendment 39 would ensure that the 1968 Act continues to apply until the Scottish Parliament puts a new regulatory regime in place.
Thank you, Mr Benton.
I assure my hon. Friend the Member for The Cotswolds that the control of air weapons in Scotland will not fall into a state of limbo. By devolving power, we are not disapplying the present regime, but simply allowing the Scottish Parliament to change the laws that currently apply to air weapons, should it so wish. Until such a time, the existing rules will apply. I therefore suggest to my hon. Friend that his amendment is unnecessary.
Amendment 17 would prevent the Scottish Parliament from putting any controls on air weapons intended for use in recognised international sporting competitions. The Government recognise the legitimacy and responsibility of those who take part in safe and undoubtedly well-regulated use of air weapons for target shooting purposes. We fully accept that individuals engaged in such activity are highly unlikely to misuse their weapons.
I also understand concerns that devolved powers could be used in such a way as to prevent such competitions from taking place in Scotland and that that would affect disciplines in the Commonwealth games. Although I understand that the air pistols and air rifles used at that high level of competition are relatively expensive and built to high specification for their grip and accuracy, it would be difficult in practice to distinguish those intended for such use from other high-spec weapons that are used in lesser competitions or for hunting small game or for vermin control.
The Calman commission took the view, and the coalition Government agree, that there is a case for air weapons being controlled at the most local level. We must accept that the natural result of devolution is that separate rules may apply in different areas of the UK. Apart from the question of principle, it would be confusing and potentially difficult to split air weapons into different categories when there is no clear difference in muscle energy between a gun used for competition shooting at an international level and one used for lesser competitions or other sporting purposes.
Amendment 38 would restrict the power of the Scottish Parliament to air pistols and air rifles with a muzzle energy below 6 foot/lbs. That means that any air rifle that has a muzzle energy between 6 and 12 foot/lbs would not be subject to any new controls that the Scottish Parliament tried to introduce, but remain subject to the Firearms Act 1968. Most modern air rifles fall within that range. Anything above what is already declared to be “specially dangerous” by rules made by the Secretary of State under section 53 of the 1968 Act becomes subject to the requirement to hold and abide by a firearms certificate under section 1 and will not be devolved. It is right to retain a common framework across Great Britain for the most lethal weapons. As I have already said, I see no reason to try to split responsibility for the lower powered air weapons that we are devolving in the Bill. Calman did not recommend that, and it is wrong that the Scottish Parliament should not be able to exercise control over the majority of air rifles in use today.
Amendment 3 would omit the words in the exception to the reservation, which provides for the Home Secretary to retain powers for declaring air weapons “specially dangerous”. Those are subject to stricter controls because they need to be tackled on a consistent basis throughout the United Kingdom. The effect of declaring an air weapon “specially dangerous” is that it becomes subject to the requirement to hold and abide by a firearms certificate under section 1 of the 1968 Act. Currently, air pistols that generate a muzzle energy in excess of 6 foot/lbs and other air weapons that generate a muzzle energy in excess of 12 foot/lbs are declared to be specially dangerous for those purposes.
In essence, air weapons that are the subject of such rules or orders are classified as firearms under section 1 or prohibited weapons under section 5. Since the regulation of such firearms and prohibited weapons will remain reserved, as recommended by Calman, it follows that the power to decide what is a section 1 firearm or a prohibited weapon should also remain reserved.
Amendment 18 would address cross-border issues, which several hon. Members raised. We should remind ourselves that the Bill is simply devolving the power to regulate air weapons—not setting out the framework for regulation itself. Any discussions about future operational challenges are therefore largely hypothetical at this stage. How far any alternative regime will differ from that which applies in England and Wales has yet to be determined. As I said, I encourage my hon. Friend the Member for The Cotswolds to try to ensure that the debate that he set out this evening moves to the Scottish Parliament, if it is to consider those matters. Of course I accept that there could well be differences in its approach to controls, but that is a natural consequence of devolution.
The Scottish Government will, of course, need to consider carefully how any new controls in Scotland will dovetail with the law in England and Wales, Europe and the rest of the world. I am sure that they will consult widely if they choose to change the law. If the Scottish Government introduced licensing for air weapons, they would need to consider what form of temporary licence a visitor from outside Scotland needed on or before entry. Any such temporary licence could not be checked if the visitor’s first port of call was England or Wales, so the Scottish Government would need to think about how they might enforce such a requirement.
Will my right hon. Friend address the point that I made before he concludes? What will happen to those people who currently have air weapons that are perfectly legal but would become illegal if the Scottish Parliament changed the rules? Would they be compensated?
It would be entirely for the Scottish Parliament to determine what regime it introduced if it created a restriction. It would not be a matter for the coalition Government. There was no suggestion of compensation from this Parliament or Government.
I recognise the strength of feeling of hon. Members of all parties on the issue. As I said, there are important implementation matters to be considered, alongside awareness raising and education to ensure that those who currently hold and use air weapons lawfully are not unwittingly affected. However, I would argue that these are questions for the Scottish Parliament. Today, we are considering whether to support the recommendation of the Calman commission, which the Government have included in the Bill and has the support of the Scottish Parliament Committee. I therefore urge hon. Members not to press their amendments to a vote.
I am disappointed with some of the content of the Minister’s response. In respect of amendment 17, I understand that the Scottish Parliament and the SNP—whether the Edinburgh SNP or the London SNP—is included in a cross-party understanding of what is required to ensure that the Commonwealth games are properly protected. I am sure that that will endure.
I am more confident about that than on the Minister’s comments on amendment 18. The amendment is intended to be helpful to the UK Government, which has a responsibility to ensure cohesion, so that things do not slip through the net.
I was concerned with the Minister’s hesitation on BB guns in response to my hon. Friends the Members for Kilmarnock and Loudoun (Cathy Jamieson) and for East Lothian (Fiona O'Donnell). They highlighted the point on definitions that I tried to make at Home Office questions earlier. I hope that he will reflect properly on that prior to Report, particularly in the light of the points made by my right hon. Friend the Member for Stirling (Mrs McGuire).
I am conscious that a number of hon. Members are in the Chamber and I am sure they have other things to get on with this evening. I hope the Minister reflects on my proposals. If he is unable to change his mind, we may return to them on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 3, page 7, line 27, leave out from ‘1968’ to end of line 34.—(Pete Wishart.)
Question put, That the amendment be made.
Clause 11 ordered to stand part of the Bill.
On a point of order, Mr Benton. In exchanges on clause 7, the Minister responded to a comment from the hon. Member for Perth and North Perthshire (Pete Wishart) about so-called secret clauses and said that they had been placed on the website of the Advocate-General. We have subsequently sought to find those clauses on that website, but have been unable to locate them, so can you advise the Committee on how we might be able to do so?
Further to that point of order, Mr Benton. The Minister has generously offered to e-mail those secret amendments to the Front-Bench spokesman of the Labour party. I take it that he will want to communicate with the whole Committee, so placing the amendments in the Library would be more helpful.
I support clause 12, but I have a couple of questions about its implications. As the Committee will be aware, this clause and attendant issues were the subject of detailed scrutiny by the Calman commission. It was corporate insolvency practitioners who pressed the case on that commission for introducing such a clause, which effectively re-reserves some aspects of corporate insolvency work.
The Scottish National party has responded with a blanket, knee-jerk reaction against the proposal, because it does not believe that powers should be re-reserved. The Labour party takes a different view. The Calman commission examined the range of powers as a whole, and determined which, in Scotland’s best interests, should be devolved and which should continue to be reserved. As we all know, it concluded that there should be some changes, but not too many. We accept that recommendation, and also the comments of the LCM Committee, but the Scottish Federation of Housing Associations—from which Members will no doubt have received a briefing—has expressed concern about the implications for registered social landlords. Housing policy is, of course, devolved.
I am aware that, as no registered social landlords have been affected yet, the position is theoretical. However, on 25 February the Secretary of State told the convenor of the LCM Committee that the Government did not intend to cause any difficulty relating to housing policy, that they would consider introducing section 104 orders when that was necessary and appropriate, and that discussions were taking place between the Scotland Office and the Scottish Federation of Housing Associations. May I ask the Minister to confirm his intentions, so that we can ensure that the federation’s concern is not used unduly as an excuse to oppose the clause merely because it re-reserves a power, and that it is being dealt with?
I am glad to have an opportunity to respond to the amendment in a way that does not involve any sort of knee-jerk reaction. I intend to discuss the substance of the issue, which is the power to transfer power over all insolvency matters and all aspects of company liquidation back to the House of Commons. Currently, certain aspects are devolved.
When the Commission on Scottish Devolution examined the issue it identified some shortcomings in the existing set-up, notably a degree of overlap in responsibility between the rules relating to insolvency governed here and those governed in Holyrood, and a need for consistency across the United Kingdom. As many Members will know, the Calman commission responded to the concerns expressed by, in particular, the Institute of Chartered Accountants and the Law Society of Scotland by recommending that the United Kingdom’s Insolvency Service should be responsible for the rules to be applied by insolvency practitioners on both sides of the border, with the consent of the Scottish Parliament, and that the Scottish Parliament should retain its legislative competence over corporate insolvency.
Members will note that clause 12 goes way beyond the Calman recommendation. It would transfer powers over all aspects of company liquidation to the House of Commons. I urge the Committee to think very carefully about the clause, because I believe it is a rather blunt instrument which could have a number of undesirable and unintended consequences. I suspect that there is broad agreement in the Committee that the existing legislative framework pertaining to insolvency in Scotland could be strengthened and improved, but the real question is how we should go about it. Should we, as the clause suggests, simply re-reserve powers—which might be a quick and dirty way of dealing with the matter—or is there a better way of achieving the desired outcomes of consistency and efficiency?
I fear that clause 12 will create as many problems as it solves. We should bear in mind why the powers were devolved in the first place. The purpose was largely to take account of the distinctiveness of the Scottish legal system. When Professor George Gretton, the Scottish law commissioner and expert on insolvency, gave evidence to the Calman commission, he stated emphatically:
“Insolvency law has to fit in within the general corpus of the law, including such matters as the different court structures, the different systems of what Scots lawyers call diligence, the different systems of property law, and the law of voidable transactions.”
He pointed out that the aspects of corporate insolvency law that had already been devolved by the Scotland Act were pretty much aligned with the areas that were peculiar to Scots law. The issue was thought through carefully in the first place, and I feel that we too should think carefully before unravelling the existing provisions without taking account of the wider implications.The chair of the Scottish Law Commission, Lord Drummond Young, has also expressed concern about the implications for the sensible reform of Scottish commercial law, should these powers be re-reserved.
As the hon. Member for Rutherglen and Hamilton West (Tom Greatrex) has already pointed out, some of the deepest concerns about the consequences of the clause have been expressed by the Scottish Federation of Housing Associations, which has argued against it in the strongest possible terms. Members of that association own and manage 47% of Scotland’s affordable rented housing stock. They have an annual turnover of about £1 billion, and assets worth about £8 billion, so we should not take their concerns lightly. Housing is a fully devolved matter, and the Scottish Parliament has the power to legislate on all aspects of housing policy. There have been a number of changes to housing policy since the advent of devolution, as well as significant policy developments. This has been a dynamic area of activity in the life of the Scottish Parliament.
Back in 2001, in an amendment to the Scotland Act 1998, responsibility for legislation relating to the insolvency of social landlords in Scotland was devolved to the Scottish Parliament. The amendment order was agreed unanimously, with cross-party support, in the Scottish Parliament, and the provision was passed in Westminster. The amendment enabled the Housing (Scotland) Act 2001 and the Housing (Scotland) Act 2010 to address the potential insolvency of registered social landlords. The 2010 Act established the Scottish housing regulator as an independent body to safeguard tenants’ interests and regulate the financial well-being and governance of registered social landlords.
Assessing the risk of insolvency among registered social landlords is an integral aspect of the existing regulatory regime. The 2010 Act also gave additional powers to the Scottish housing regulator to act quickly when a registered social landlord was facing insolvency, thereby safeguarding the interests of tenants and of the wider social landlords sector. There have been no cases of insolvency among Scottish registered social landlords in the past 40 years, but those representing the sector are not at all complacent, given the economic environment in which they are operating and the experiences that they have seen in other parts of the UK. They believe that there needs to be provision for a regulatory authority to deal with such matters in a timely and appropriate way, should cases of insolvency arise.
The regulatory framework that has been established in Scotland is designed to reduce the possibility of a social landlord becoming insolvent by preventing the situation from occurring. I am sure that Members will appreciate the importance of that, not only for tenants and social landlords but for the wider housing sector and other stakeholders. In particular, effective regulation is crucial to the ability of registered social landlords to access lending at competitive prices. The Council of Mortgage Lenders made that clear in its response to the 2007 consultation, and it is estimated that Scottish registered social landlords have saved about £70 million in the past five years by being able to access lower lending margins than are available in the commercial sector.
All this provides a practical illustration of why a strong regulatory framework is important, and why these matters were devolved in the first place. We really should not be rash enough to dismantle that framework. We must also bear in mind the fact that, if we pass clause 12, any future measures relating to the insolvency of registered social landlords would require legislation at Westminster, with all the difficulties of securing time that that involves. We need to recognise the practical benefits of devolution in this area, and not try to reinvent the wheel in our efforts to tidy up the loose ends in the wider insolvency provisions.
In housing, there is a strong case for preserving the coherence and alignment of the legislative policy making and regulatory frameworks. This would be broken if insolvency powers over registered social landlords were to be re-reserved. If the main reason for clause 12 is to tidy up insolvency provision from a UK point of view, it would be most regrettable if it were to make housing policy significantly more untidy in the process. I have a real concern that, in time, such a dislocation of policy from regulation could lead to delays, fragmentation and inappropriate decision making. It would be a retrograde step, and it would reverse recent progressive measures that have had the support of the Scottish Parliament right across the political spectrum.
I urge Members to look again at this matter. We need modernisation of the insolvency provisions; that will be very welcome. This is not the way to do it, however. There are many ways of doing it, and key to the process will be better inter-governmental working. I would also draw the House’s attention to the Scottish Parliament’s Scotland Bill Committee, which took these concerns seriously and recommended that legislative consent on this clause should be subject to certain provisions being drafted. We are not in a position to see those provisions today, so I would urge Members to oppose the clause in the interim, until we have a workable and effective solution before us.
I am pleased to follow the hon. Member for Banff and Buchan (Dr Whiteford), who has both conflated a lot of issues that are of obvious concern to her party and not been quite open about what happened on the Scottish Parliament’s Bill Committee. We have heard what seems to be a strange argument: the SNP is for devolution unless it does not win the vote, because on a devolved committee the SNP moved an amendment and lost. Then the committee concluded that it was
“content to recommend to the Scottish Parliament that it should give its legislative consent to the provisions in the Scotland Bill relating to the re-reservation of insolvency, subject to provisions being drafted which will secure capacity for devolved legislation to affect the winding-up of Registered Social Landlords”.
On the one hand the hon. Lady is conflating lots of issues of obvious concern to her party, but on the other she is denying the democratic process when it goes against her in the devolved Parliament.
The third thing that the hon. Lady has done is make a case as though that case were not recognised by everyone, on all sides, in the evidence given to this Parliament. Hopefully, the Government are listening to that, and those on our Front Bench have stressed the same points. However, there is another fault that people show when trying to enthuse people—I think that the common phrase is “overegging the pudding”. There has not been a bankruptcy or insolvency of a registered social landlord in Scotland in 40 years, because of the way in which their arrangements are structured. I was active in the early days of the housing association movement as a leader of a council in Scotland. Across all the parties we created a structure that mainly secures registered social landlords from the problems experienced by those landlords who are thirsting for profit and therefore taking risks by borrowing and overextending themselves. Registered social landlords are to be commended because they tend not to get themselves into such situations, which is one of the reasons we set them up as we did.
Everyone takes seriously the point made by the Scottish Federation of Housing Associations, including those on our Front Bench and, I hope, the Government. Therefore, we should have the necessary safeguards to allow the points made by the SFHA to be taken on board. The SFHA is worried about the speed of action should there ever be a problem, and hopefully the final legislation will recognise that. However, we cannot conclude from this that we should therefore go against the recommendation of the Scottish Parliament’s Bill Committee and against common sense in having a system across the UK to address a problem that faces a lot of the corporate bodies and private organisations in the UK at the moment.
This is an argument that has come directly from the Scottish Federation of Housing Associations, which is concerned about preventing such problems from occurring in the first place. It is the SFHA that is worried about the environment in which it currently operates. I know that we will shortly debate housing benefit in this House, but one of the SFHA’s concerns is that changes to housing benefit could have serious repercussions for cash flow. It is concerned that the financial position is not as secure as it might have been. That is why we have to take this issue seriously. I wish that I could share the hon. Gentleman’s optimism, but hoping that something might come forward is no way to go through the parliamentary process.
Allow me to recommend that optimism to the hon. Lady, who is new to the House. That optimism, which I have carried with me for 18 years, might stand her in good stead if she survives as long as I have in this place. They do say—I am quoting Gramsci, the socialist—that pessimism of the intellect should breed optimism of the will. She will certainly require that again and again if she sits on the SNP Benches in this place, I can tell her that.
I am deeply involved in fighting a case involving a bad insolvency in my constituency. In a sense, I have had to step over a line that I have drawn for myself since devolution, where I have had to say, “This is not a matter for me: I have a remit as a UK parliamentarian and my colleagues”—Members of the Scottish Parliament—“have a remit devolved to them.” I try to keep the two apart quite strictly. I try to encourage devolved organisations to write not to me but to my MSP colleagues, and to engage them properly in the process. I was involved in the scrutiny of bankruptcy in Scotland legislation here in Westminster between ’92 and ’97, and knew quite a lot about that. I therefore find the current environment frustrating, as many companies are facing serious challenges because of economic conditions and are having to go through the insolvency process.
Although the case I took on involves what is currently a devolved matter, I knew that re-reservation was being reconsidered, so my conscience was somewhat assuaged. The reality is that the insolvency process is not very pleasant. It is never pleasant for people to be bankrupted or to have their goods and chattels sold by a bankruptcy administrator who seems to be their friend until the moment when they sign the form, and who then turns out to be their enemy. In the case I am currently involved in, there is a house for sale. The insolvency administrator has allowed it to be vandalised, so quite a lot of the financial benefit to the creditors has been lost, and seems to be ignoring any offer from anyone to buy the property.
This issue should be a responsibility across all the Chambers, and I think it makes sense for the same rules to apply in Scotland as in the rest of the UK. The Bill’s provisions would bring them into line. We should all realise that it does not matter which side of the border people are living on or trading in, and that they must be dealt with properly by the insolvency laws and its practitioners. I have serious reservations about the way they are currently regulated. I look forward to this being returned to being a reserved matter so that I can fully engage in it.
Clause 12 implements the Calman commission recommendation that the UK Insolvency Service should be made responsible for laying down rules to be applied by insolvency practitioners on both sides of the border. The commission was persuaded by evidence from stakeholders, including the Law Society of Scotland and the Institute of Chartered Accountants of Scotland, that a consistent approach to winding up would bring significant benefits to insolvency practitioners, creditors and others dealing with insolvent companies in both England and Wales and in Scotland. Many windings up involve groups of companies that operate on both sides of the border, and it will be more efficient in terms of both time and money if the same winding-up rules are applied to each insolvent company in the group, except where Scottish common law dictates otherwise.
As a result of the proposals, the reorganisation of groups of companies will be more efficient and lead to increased returns for creditors and shareholders. Group reorganisations may involve subsidiaries being wound up, and a common approach to winding-up rules would help reduce the cost and complexity of group restructuring where constituent companies operate in both Scotland and in England and Wales. In its evidence to the Calman commission, the Institute of Chartered Accountants of Scotland, which regulates most of the insolvency operators working in Scotland, highlighted the benefit of consistent rules in promoting a more stable environment for corporate recovery and turnaround.
I am interested in what the Minister says about having the same rules across an economic single market. By that logic, is he arguing that this should be not a UK competence, but a European competence across the single market in which we all live?
I understand where the hon. Gentleman is coming from, and his party’s position in relation to matters European, which, as I understand it, would have Scotland as a member of the euro, which I steadfastly disagree with.
The Law Society of Scotland reported in its evidence to the commission that, because of the increased number of insolvencies of groups of companies, practitioners have for a number of years been having difficulties where parts of the group are subject to the English rules and part to the Scottish rules. The Calman commission was persuaded that a consistent approach should be taken to winding up rules, and the UK Government agree. The commission recognised that its first option for implementing its recommendation—UK legislation followed by a legislative consent motion—might not be achievable, so it suggested primary legislation amending the devolution settlement as an alternative means of securing the desired effect. The first option would not fully and effectively transfer legislative and Executive competence in this area, and that could result in continuing divergences in the rules. That would frustrate the objective expressed by the Calman commission, which is why we are adopting the second of the commission’s options and re-reserving the winding up of business associations in its entirety.
Schedule 2 is introduced by clause 12. Having just one Parliament responsible for the rules relating to winding up in Scotland will aid flexibility and responsiveness, and address problems that have been reported by insolvency office holders when the law changed in one jurisdiction but not the other. In fact, we are seizing the opportunity that the Bill provides to deliver for Scotland the benefits of modernisation changes, some of which have been in place in England and Wales—and for the existing reserved insolvency procedures in Scotland—for nearly two years. These changes lift administrative burdens by allowing insolvency office holders to make full use of advances in information technology made over the past quarter of a century to communicate with creditors, thus reducing the costs—for the benefit of creditors.
The changes were made to reserved insolvency procedures in Scotland in 2009 and 2010 by a combination of legislative reform orders and subordinate legislation, but because of the division of responsibility for rules between the UK and Scottish Parliaments the changes could not at that time be extended to windings up taking place in Scotland. That is an example of some of the unnecessary and confusing divergences that have developed between the two jurisdictions about which the Calman commission expressed concern. We are taking steps to address that concern and thereby ensure that creditors of windings up taking place in Scotland are able to enjoy similar benefits to those provided for creditors of windings up in England and Wales.
I wish to deal specifically with the points raised about registered social landlords. In that context, I fully agreed with the appraisal of the hon. Member for Linlithgow and East Falkirk (Michael Connarty) of the contribution of the hon. Member for Banff and Buchan (Dr Whiteford). I accept that she has legitimate concerns, which she raised in the Scottish Affairs Committee. As part of my appearance before that Committee, I undertook to meet representatives of the Scottish Federation of Housing Associations. I am pleased to report to this Committee, as I have done to the Scottish Affairs Committee, that that meeting has taken place and we were able to have a full discussion about these concerns.
The first and most important point is that no change to the Housing (Scotland) Act 2010 will be brought about by these measures. They will not change the provisions of that Act or the regime and regulator that were put in place; they will not change the insolvency processes envisaged by that Act. Part of the concern appeared to be about what happened if the insolvency procedures put in place by that Act did not work and had to be changed, and whether this House would be as responsive in dealing with those concerns as the Scottish Parliament. I know that the hon. Lady has a fundamental view about the balance between the former and the latter. However the experience of not just this Government, but the previous one, when the hon. Member for Glasgow North (Ann McKechin) was in the Scotland Office and the hon. Member for Rutherglen and Hamilton West (Tom Greatrex) was aiding her, suggests that the UK Government have demonstrated a willingness to support the legislative intentions of the Scottish Parliament. The Insolvency Service is held in particular regard for the measures it has brought forward to modernise insolvency practice in areas for which it has responsibility in Scotland and, indeed, in England and Wales. I am pleased to report that the Insolvency Service will meet the Scottish Federation of Housing Associations at the beginning of April to discuss any specific ongoing concerns that might still exist.