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Scotland Bill

Volume 734: debated on Thursday 26 January 2012

Committee (1st Day) (Continued)

Debate on whether Clause 1 should stand part of the Bill resumed.

My Lords, I made the mistake before we started today’s business of having a brief word with the Minister, from which I gained the impression that if I kept quiet the preliminary business would be dealt with very quickly and we would soon be into the body of the Bill. I increasingly regretted taking the decision to keep quiet. I have picked some of the notes that I made and scribbled all over them, with a view to reintroducing and regurgitating them now.

The first thing I would say to my noble and learned friend is that, historically, two and a half hours of letting off steam at the beginning of the Committee stage on any Scottish legislation has always proved a way of shortening the overall length of proceedings. Perhaps that may happen on this occasion. However, not having let off steam, I still have some to let off and I propose to do it in short, sharp bursts periodically through the progress of the Bill.

I absolutely support the admirable speech made by my noble friend Lord Forsyth and the brilliant way in which he laid out the concern that all sides of the House have. It was an extremely productive and successful debate. I thought that his tone was absolutely first-class as well. While the noble Lord, Lord Kerr, and others have criticised the tone, and are right to do so, we should always remember that tone is important but so are the facts. The facts will be pretty unpalatable but will have to be laid out before the electorate at various stages. We fail in our obligations if we do not take every opportunity to do it in this place, as well as in the referendum when it comes.

This clause was not one that concerned me when I initially looked at the Bill. I had concerns about other clauses but not about this one. However, in the light of what has happened in the past few days, and the way in which the Scottish National Party Administration has behaved, it is not a clause that one should let pass unchallenged without questioning precisely what it would achieve. That is an important approach to take, not just to this clause but to the whole Bill.

It is unsatisfactory that there is no Scottish National Party Peer in the House who could answer for that party. Let us hope that that will soon be put right. However, foghorn diplomacy is one of the First Minister’s strengths and we hear pretty clearly, even from here, what he has to say. The views of the Scottish Administration shriek out from the paper in which they published them and we are not in much doubt as to what they believe.

Turning specifically to the clause, I think the noble Lord, Lord Browne, raised the question of the possible extension of the franchise to 16 or 17 year-olds. If he did not, I hereby raise it now. I see that Clause 1 transfers certain executive functions in Section 12, relating to the conduct and administration of Scottish Parliament elections. That sounds harmless enough but I should like to hear a little more from the Minister by way of reassurance that it will not jeopardise our position any more than it is already jeopardised by the gymnastics of the First Minister.

Subsection (2) gives Scottish Ministers the powers to make provisions on the conduct of Scottish Parliament elections, which again sounds innocent but is not necessarily innocent in delivery. Subsection (3) amends Section 12(2), which clarifies the scope of the order-making powers of Scottish Ministers to make provisions under Section 12(1)(a). It also amends Section 12(2)(d) to allow Scottish Ministers to combine polls to the Scottish Parliament with other devolved elections where the polls are held on the same day. This seems to me not to involve any principle but to create a potentially anomalous situation. If the electorate were extended to include 16 and 17 year-olds and the poll for a Westminster Parliament took place on the same day as that for a Scottish Parliament, or, indeed, for Scottish councils, would it not seem anomalous if the 16 and 17 year-olds were able to vote for one but not for the other? The same would be true of European elections. To me it points not to any high principle but to self-interest on behalf of the Scottish Administration, who seem to believe that young voters would be more likely than older voters to turn out and vote for independence. Therefore, I hope that my right honourable noble and learned friend understands how my concern grows in looking at this relatively innocent clause.

In that context, I should like to revisit the consultation paper published by the SNP yesterday as it is full of self-serving homilies and phrases which, on the face of it, might not spread alarm but could generate considerable concern when the day comes. I was looking particularly at the question that the SNP proposes to ask in the referendum. The summary states:

“The referendum must be trusted and clear”.

It also states that the rules are,

“designed to ensure that the referendum will meet the highest standards of fairness, transparency and propriety and deliver a decisive result”.

However, any question that starts with the words “Do you agree?” is obviously totally loaded in favour of the answer that it seeks. It is rather like a judge saying to a jury before it goes out to consider its verdict, “Do you agree with me that this man is innocent and should be set free?”. Immediately, one sees the tone of loading the answer in favour of a particular outcome. Again, it is rather like a plaintiff in a divorce court presiding over the court in which his or her divorce is heard.

Considering the way in which the Scottish National Party and Administration seem to dress up their intentions in bland language, finessing the difficult areas, should put us on our guard. That is why, when we see that the very first clause of the Bill proposes to hand more controls over parliamentary elections to the Scottish Administration, I ask my noble friend to reassure me on all that and to bear in mind that it is through the prism of the nationalist approach in the Scottish Parliament that this clause, and indeed the whole Bill, should be considered.

My Lords, I thank the noble Lord, Lord Browne, for using the clause stand part debate to allow us to explore and examine what is intended by this clause and, indeed, what is not intended. I also thank my noble friend Lord Lang. I assure him that it was not my intent to try to stop him speaking. I think he knows full well that we genuinely expected the previous debate to be somewhat shorter than was the case. He is absolutely right to say that it was good that we started with a lengthy but very good debate which allowed numerous views to be expressed. It may well facilitate our consideration of these clauses.

This clause transfers to Scottish Ministers certain of the executive functions that are currently the responsibility of the Secretary of State relating to the administration of Scottish Parliament elections. It will enable Scottish Ministers to make general provision by order for the conduct and administration of elections to the Scottish Parliament, the questioning of such an election and the consequences of irregularities. The noble Lord, Lord Browne, asked me to be more specific about what the powers confer and what continues to be reserved. In the same spirit, my noble friend Lord Lang asked for some reassurances. As I have indicated, the Bill will transfer to Scottish Ministers some of the executive functions that are currently the responsibility of the Secretary of State. There is no corresponding widening of the legislative competence of the Scottish Parliament although, obviously, it will have a role in approving the subordinate legislation made by Scottish Ministers. So it is executive devolution rather than legislative devolution.

Specifically, Scottish Ministers will be able to make provision by order as to the conduct of Scottish Parliament elections, the questioning of such an election and the consequences of irregularities. This power includes making provision about the supply or otherwise dealing with the electoral register, the combination of Scottish Parliament elections with other elections falling within the legislative competence of the Scottish Parliament—the most obvious one being local authority elections—as well as the limitation of candidates’ election expenses. However, elements of the powers will remain the function of the Secretary of State: the franchise and the combining of Scottish Parliament polls with polls at other reserved elections. This will ensure that issues of constitutional importance continue to be dealt with by the UK Parliament.

I hope that reassures my noble friend that, because of its constitutional importance, the franchise will be reserved to the United Kingdom Parliament. He referred to 16 and 17 year-olds being able to vote. Such a situation is purely hypothetical. However, having different franchises for different elections held in a combined poll may not be as anomalous as my noble friend thinks. If a local election were held in a combined poll with a Westminster election, while he and I would have the ability to vote in local elections we would not be allowed to vote in a Westminster election, so you can already have elections which could be combined on the same day with a different franchise applying in each.

As regards the referendum, I remind my noble friend and, indeed, the Committee that the preference expressed by the United Kingdom Government in our consultation paper was that the franchise of the electorate for any referendum on Scottish independence should be that which applies at the Scottish Parliament elections. That same franchise applied at the 1997 referendum. We take the view that, if it was good enough to elect a Scottish Parliament in May last year, it is appropriate for a referendum.

In addition, the Secretary of State will retain the powers to modify the application of Section 7(1) of the Scotland Act, which sets out the modifications to the calculation of the regional figures which are made when a constituency poll is countermanded or abandoned, and to modify Section 8(7), which sets out what happens when the highest regional figure is the regional figure of two or more parties or individual candidates. This is about the election to the Scottish Parliament rather than an administrative part of it. It is about the election itself. That is why we have considered it appropriate to continue the reservation. The Secretary of State will also retain the power to make provision for the return of members of the Parliament otherwise than at an election.

The B3 reservation—that is, elections to the United Kingdom, European and Scottish Parliaments and the franchise at local government elections in Schedule 5 of the Scotland Act—will remain unchanged. The noble Lord, Lord Browne, asked whether that would lead to the fragmentation which the Gould report raised concerns about with regard to the operation of the 2007 Scottish and local government elections. All responsibilities for the effective conduct of a Scottish Parliament election are being handed over to the Scottish Government. I have indicated the nature of the functions being retained, which relate to the framework under which those elections are run—for example, the franchise and the electoral registration system—or to the reserved elections such as the parliamentary elections. We believe that the difficulties encountered in 2007 were the result of a unique combination of factors that is not expected to arise again.

It is fair to put on record that the 2011 elections were well administered, notwithstanding the fact that it was a combined poll with the AV referendum. That is to the credit of electoral administrators, who are now better co-ordinated through the electoral management board that both the UK and the Scottish Governments support. If one were to change the rules with regard to electoral registration and devolve that, you could then get fragmentation because you could possibly find yourself with different rules for electoral registration for Scottish parliamentary elections and for Westminster elections. I think we are agreed that, although the franchise may be different for each of these elections, it makes sense to have the one canvass subject to the one set of rules for electoral registration.

The noble Lord, Lord Browne, in referring to the previous report of the Scottish Parliament, asked about disqualification from membership of the Scottish Parliament. Section 15 of the Scotland Act allows Her Majesty to specify, by Order in Council, various office-holders who are disqualified from membership of the Scottish Parliament. At present, Scotland Office Ministers are responsible for preparing the draft legislation and presenting it to Her Majesty in Council, but it must first be approved by the Scottish Parliament. Clause 16 has been added in response to the legislative consent Motion in March last year, and will pass responsibility from Scotland Office to the Scottish Government, although the requirement for approval by the Scottish Parliament will remain.

We believe that devolving the elements of responsibility for the administration of elections as I have outlined is consistent with the Calman commission’s principle that these matters should be decided at a level closest to those affected, unless there are good reasons for determining them at a UK level. I have sought to try and make the distinction in respect of constitutional matters and where, in terms of electoral registration, it makes sense to get consistency across the United Kingdom.

Perhaps I may make one point. I do not want to keep on bringing the debate back to the present First Minister, but he has made clear over the years his animosity and antipathy towards this House. Would it therefore be possible under the arrangements that have been outlined for the Scottish Parliament to disqualify Peers from being Members of the Scottish Parliament? That would be a great shame because a number of Peers have distinguished themselves as MSPs.

No, my Lords, that would not be possible, as eligibility matters will remain reserved. I hope that on the basis of what I have indicated—

I am grateful to the noble and learned Lord for giving way. From the way in which his voice changed, I had the sense that he was moving towards a peroration.

I am beginning more clearly to understand this division. I understand the difference between the framework within which the elections are conducted, as opposed to the administration; and I understand the difference that I imposed on this debate between the electoral system and conduct. I should be grateful if the Minister would go through the list that I gave—at some stage, if not now. Perhaps he may write to tell me where at least two of those matters lie. One of them may be straightforward and we will come to an amendment on it shortly, one hopes—the procedure and framework for filling regional MSP vacancies—but where does the abandonment of a constituency poll or notice of it to be countermanded lie? Those two matters concern me and I will ignore the other two. I should just like a reassurance that beyond the list that I gave there are no matters other than those the noble and learned Lord has identified.

My Lords, I will certainly write to confirm, but I can seek to indicate that the rules regarding the regional list will remain reserved to the Secretary of State. On the abandonment of a poll, my understanding is that the issue in question is not so much with the abandonment of the poll itself but where that leads to a difference in the calculation of the regional vote. It is that calculation that would be affected if there was an abandonment of a poll in a particular constituency. I am seeing nods that I have actually got it right. That is the substance of this reservation. I will confirm that, but I hope that that has been a sufficient explanation to the noble Lord.

Clause 1 agreed.

Perhaps I should explain to the noble Lord that we have to agree that Clause 2 stand part of the Bill before we reach Amendment 1.

Clause 2 agreed.

Amendment 1

Moved by

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

“Regional vacancies: individual candidates

(1) Section 10 of the 1998 Act (regional vacancies) is amended as follows.

(2) In subsection (2) omit “the regional member was returned as an individual candidate, or”.

(3) After subsection (6) insert—

“(6A) If the regional member was returned as an individual candidate, an election will be held and the single vacancy allocated in accordance with the procedures set out in subsection (6B).

(6B) In any election held in accordance with subsection (6A)—

(a) for each registered party which has submitted a regional list, the regional figure for the purposes of paragraph (c) is the total number of regional votes given for the party in all the constituencies included in the region divided by the aggregate of one plus the number of candidates of the party presently returned as constituency members for any of those constituencies plus the number of regional seats allocated under section 8 to that party at the previous general election;(b) for each individual candidate, the regional figure for the purposes of paragraph (c) is the total number of regional votes given for him in all the constituencies included in the region;(c) the vacant regional member seat shall be allocated to the registered political party or individual candidate with the highest regional figure.””

Thank you, Lord Chairman. I am really grateful to you. You are almost a relative. I have great respect for your knowledge of procedure, including procedure in the other place, where you served with great distinction as Deputy Speaker. I remember very well that you kept me in order from time to time. I wish that you had the same powers here, by the way, but that is another story.

Perhaps I may also be permitted to speak to Amendment 16, which is grouped with this amendment. I am sure that one speech would be welcomed by the House, rather than if I spoke to the amendments separately.

As to Amendment 1, I believe that I have discovered a gap, a lacuna or whatever word one should use, in the electoral process. It came about in my discussions in relation to my very good friend, the independent Member in Lothian, Margo MacDonald MSP, who I have known for many years. In raising this issue, I wish her absolutely no ill at all—quite the reverse. I hope that this issue does not arise in any way. However, it occurred to me when talking to her and then looking at the legal position that if a vacancy arises for a constituency Member, there is provision for a by-election, and if there is a vacancy for a regional Member on a party list, the next person on that list automatically takes over. However, when an independent Member either resigns or sadly dies, there is no provision for filling that vacancy. There seems to be something missing from the arrangements. I am sure that everyone would agree that there ought to be some method for filling that vacancy. Having discussed it with the helpful people in the Public Bill Office, my amendment is just one way of dealing with that issue.

If a vacancy arose due to the resignation or the decease of an independent Member, new subsection (6B) proposed in my amendment would take effect. A new calculation would then be carried out by the returning officer, in the same way as the allocation of the regional seats which resulted in the election of that independent Member. It would be:

“for each registered party which has submitted a regional list, the regional figure for the purposes of paragraph (c) is the total number of regional votes given for the party in all the constituencies”—

we know that figure; that was used in the initial calculation—

“divided by the aggregate of one plus the number of candidates of the party presently returned as constituency members for any of those constituencies plus the number of regional seats allocated under section 8 to a party at the previous general election”.

So those seats are all taken into account. Proposed new paragraph (b) states:

“for each individual candidate, the regional figure for the purposes of paragraph (c) is the total number of regional votes given for him”—

it should say “or her”, but I am sure that in this case “him” includes “her”, or embraces “her” may be a better way to put it—

“in all the constituencies included in the region”.

Then, the vacant regional Member seat would be allocated to either the registered political party or the individual candidate with the highest regional figure. That seems to me, and it seemed to the Public Bill Office, the best way to deal with it.

I hope that the Minister and all Members of the House agree that the issue needs to be dealt with. The Minister has a great deal more advisers on drafting than I do. If, for any reason, this is not the best way to deal with the matter, I hope that at the very least he will say that he will come back with an amendment that deals with it more effectively.

Amendment 16 is very different and addresses a difficult issue on which I have changed my views—as have others, I think. It concerns whether persons should be permitted to stand for both a regional seat and a constituency seat at the same election. Paradoxically, the position is different in Wales from that in Scotland. I do not understand why it should be different. In Wales, the same individual is not permitted to stand for both a regional and a constituency seat.

A few years ago, before the most recent election in Scotland, that seemed to me to be a very sensible provision. I tabled an amendment in this House. Strangely enough—but these things happen in politics—the Minister who had piloted the legislation for Wales, and argued the case in Wales that a person should not be permitted to stand for both, made an entirely opposite argument in rejecting my amendment to bring Scotland into line with Wales. I have great respect for my good and noble friend Lord Evans, especially when he can argue one way one year and the other by the next; that is a necessary skill in politics. However, he did not give any explanation for it.

I hope that if the Minister does not accept my amendment today, he will at least give some logical explanation which will convince not just me but other Members of the House why it should be different in Scotland from Wales.

Arbuthnott identified the problem of dual candidacy in his report. He said that the commission found considerable public opposition to the party control of the closed list. Concerns cited were a lack of voter choice over the selection and election of regional candidates. This was perceived to undermine legitimacy. That is not dealing with precisely my point, but he went on to state that the lack of legitimacy was compounded by the problem of dual candidacy. While candidates were defeated in their constituency, many were then elected because they were included on closed party lists. It was noted that 88 per cent of successful regional MSPs had been failed constituency candidates.

That was what led to the change in Wales. There were three defeated candidates in one constituency alone all of whom came back on the list. But would that problem not be overcome if there was an open list rather than a closed list?

There is scope for another amendment, I think. I have tabled enough already, so perhaps the noble Lord might think of tabling one. Everyone here from Scotland will know that list Members have a habit of choosing a seat they would like to stand for in the constituency and then concentrate on opening an office and taking up issues in that constituency. If the constituency Member cannot deal with a problem—elected Members will know that some problems are insoluble—the candidate will jump on the bandwagon and take it up.

Dual candidacy is a real problem. I have tabled a later amendment proposing a general review of the electoral system. I will discuss that in greater detail when we get to that amendment. It would be a better way of dealing with the issue in the longer term, but this would deal with it in the short term. Our electoral system was set up with the best of intentions, but even the noble Lord, Lord Steel, who was involved, now recognises that it is not fit for purpose. One of the problems is the question of dual candidacy. I hope that other Members who have experienced the problems of dual candidacy in Scotland will comment, and I certainly hope that the Minister will consider the potential change and, at the very least, explain why there should be a different system in Scotland from the one that I understand operates quite successfully in Wales.

My Lords, the noble Lord has raised two very important, if minor points. We have to remember that when we were legislating on the then Scotland Bill, in which I was involved in this Chamber, the additional Member system, as it is known, was completely new to this country. There were one or two loose ends that were not quite right.

On Amendment 16, which is the noble Lord’s more substantial amendment, I entirely agree with him. As Presiding Officer I had to deal privately with complaints from constituency Members about the activities of regional Members. It is slightly worse than the noble Lord said because quite often regional Members had not just stood and been defeated, they were intending to stand again in the constituency. People were sitting in the Parliament—quite unlike this place—and had every intention of fighting a Member sitting on another Bench. That made for bad relations within the Parliament and some people—I shall name no names—exploited it disgracefully. In Wales—

I shall give way in a second. The same problem arose in the original Welsh legislation—the noble Lord will correct me if I am wrong—but it was the wish of the Welsh people to change the rule. Unfortunately there is not the same will in Scotland, not even in my own party.

It was not exactly the same in Wales. The circumstances are different in that there are four Members on the list in Wales, compared with seven in Scotland. The proposed changes would not overcome one of the basic problems. Someone who has been elected on a list can still stand at the next election for a constituency seat and do exactly what the noble Lord described, and can give up the regional seat in standing for the constituency.

I take that, but what they cannot do in Wales and not only can but actually do in Scotland is stand in the constituency and also be on the list. They have a fallback position which is not the case in Wales. That is wrong and it should be put right. Whether we can do it in this Bill is another matter but the noble Lord, Lord Foulkes, raises a very important point.

On the noble Lord’s other more minor amendment about by-elections in the event of an independent Member creating a vacancy, I have an additional point to make. My memory is fading but I think that I gave evidence to the Calman commission, which has not dealt with it in the report. I was elected on the regional list as a Liberal Democrat and when I went into the Chair, of course, I had to resign from the party. There was no way that I could be re-elected because I was no longer a member of the party; I was an independent. I could not stand in Edinburgh and say, “Please elect me because I am the Presiding Officer”. I am not saying that I wanted to particularly but it was impossible to do it. My two successors were fortunately elected in constituencies but that might not always be so. When a Presiding Officer happens to be a regional list Member there is no way that he or she can continue for a second Parliament. That cannot be right. There is a minor problem in addition about independents standing on the regional list. The whole thing would be clarified if we had a different electoral system but we are saddled with what we have now and I have no instant solution to that problem. It is one that ought to be taken up as we proceed with the Bill.

My Lords, I shall speak to the amendment in this group standing in my name and that of my noble and learned friend Lord Boyd of Duncansby. I also have something to say about the amendments tabled by my noble friend Lord Foulkes.

My amendment would grant the Scottish Parliament the power to ensure that its elections are never again held on the same day as another national poll. The amendment is nearly identical to one tabled by my honourable friend Tom Greatrex, the Member for Rutherglen and Hamilton West, at the Public Bill Committee stage in the House of Commons. However, I regret that during that debate the Parliamentary Under-Secretary of State for Scotland and many others were diverted by the then controversy of the imminent application and interaction of the Fixed-term Parliaments Act. As far as I can see, although my honourable friend spoke to the amendment, it was never properly answered. Therefore, it has been repeated here in order to get an answer. If the answer allows for the avoidance of a coincidence of polls such as we saw in 2007, I will be greatly satisfied.

As noble Lords will know, the coincidence of local government and Scottish Parliament elections on 3 May 2007—and other factors—led to the rejection of 146,099 Scottish Parliament ballot papers and 38,362 local election ballot papers. It was the nadir of electoral administration in the United Kingdom, and everybody has focused on ensuring that it never happens again. It is the firm belief of this side of the House that never again should the people of Scotland be subjected to the confusion and chaos of two polls on the same day. We strongly opposed the coalition Government's decision to impose a referendum on the alternative vote system on the same day as the Holyrood election. The Minister said that it passed off without incident, but we will never know what effect that coincidence had on the way in which people behaved. There was no repeat of the dreadful circumstances of 2007, but I argue in my amendment that we should try to avoid repeating the coincidence if at all possible.

I am conscious that Clause 2 relates to the administration of the combination of polls that would be required should there be such a coincidence. I have nothing to say about that; I agree with it. We have been combining polls in those circumstances probably since 1978 or before. It makes good sense. Therefore, I am happy to let Clause 2 pass. What I am concerned about is seeking to use the device of the 1998 Act to avoid this. If the clause is properly drafted—and I hope that it is—it would grant the Scottish Parliament the flexibility to move its poll in the event of a coincidence. It would mean that there should never be any future coincidence of polls unless the Scottish Parliament decided otherwise. Most people believe that probably we cannot have that coincidence. However, despite the Fixed-term Parliaments Act and the devices of extending the period of a Parliament, in particular of the Scottish Parliament, that the coalition Government have agreed to, there is the possibility of an extraordinary election—some noble Lords on this side of the House would quite like next to see ordinary election, despite the Fixed-term Parliaments Act—coinciding with a date fixed for a Scottish Parliament election.

I got myself into some difficulties with the arithmetic of trying to work out whether coincidence is at all possible with the European Parliament elections as a consequence of the movement of the Scottish Parliament elections. It may just be possible, which is why the amendment anticipates the coincidence. I may be wrong about that, but we could in future have to use the device of extending the Scottish Parliament’s time again to avoid coincidence. That may throw up the possibility of a European Parliament coincidence. We believe this is the best way to do this. It should be a matter for the Scottish Parliament. In response to Gould, the Scottish Parliament committed to decoupling Scottish Parliamentary and local government elections, which was the real mischief that caused the problem in 2007. Similar provisions have been made to try to ensure that Scottish parliamentary and UK general elections do not follow the same cycle, as I have already said. The Calman commission recommended that, for reasons of practicality and principle, Scottish parliamentary elections should be administered at the level closest to those affected by them. We have already debated that to a degree. In a sense, it was the electorate of the Scottish Parliament who were the victims of the catastrophe that was the 2007 election. We believe that as a mature Parliament the Scottish Parliament should have the responsibility to decide whether it wants to allow this coincidence to persist, should it happen because of the rhythm of parliamentary elections or the possibility of an extraordinary election. This amendment is devised to achieve that possibility.

I turn to the amendments tabled by my noble friend Lord Foulkes of Cumnock. I congratulate my noble friend and, by extension, the noble Lord, Lord Steel of Aikwood. Each of them identified lacunae in the framework for Scottish elections, which is a phrase that I will now use, to the Scottish Parliament that could be addressed. I was not aware that there is no process for filling a vacancy for an independent member in the regional part of the system. That should not be allowed to continue. I understand that my noble friend’s approach to this is to devise a method that is very similar to the method adopted for electing regional members. It is very close to that, if not precisely the same. I urge the Minister to take this away to see whether, at some stage during the passage of this Bill, we can deal with this. His advisers are, in addition, capable of dealing with a lacuna that has been identified by the noble Lord, Lord Steel of Aikwood. I suggest that the Minister considers that too. It would genuinely be in the spirit of the appropriate approach to this legislation. I am sorry that the Calman commission did not have its attention drawn to this problem because I am sure that if it had the noble and learned Lord in another guise may well have been party to a recommendation to resolve it.

I turn to Amendment 16 which the noble Lord, Lord Steel, identifies as being the more substantial amendment. My noble friend Lord Foulkes of Cumnock is a man of extraordinary experience, not just in your Lordships' House but in the House of Commons and in the Scottish Parliament. Some of us were privileged to be at the celebration of his 70th birthday in the Gorgie Suite in his beloved Tynecastle Park on Saturday night. He knows where my allegiances lie, and I am delighted that there is at least one reason for celebration in the Gorgie Suite in Tynecastle this year because there will be precious few others. For those noble Lords who do not know what I am referring to, in an act of extraordinary generosity his family invited almost 200 people from all over the world to join the celebration of his 70th birthday. The fact that almost nobody refused the invitation no matter how far away they came from or, it seemed to me, failed to turn up is a measure of the high esteem in which he is held. I refer to this because the speeches that night celebrated a lifetime of service to politics in Scotland and to public life. It is from that background that he speaks when he rises in your Lordships' House, and he ought to be listened to carefully. However—

However, I regret that in this case I cannot support my noble friend’s amendment. If there is a mischief here, it seems to me that the solution lies in the hands of the political parties. We should not be legislating for this and I am surprised that we have in fact legislated in Wales, but if the Welsh people wanted that, that is fine.

For many years, the Labour Party had a voluntary prohibition on this. We had a rule that you could not stand for both the lists and the constituencies. We departed from that at the last election to the Scottish Parliament and because of that Sarah Boyack is a Member of the Scottish Parliament. That seems to be a good result; apart from anything else, it may be a reason for maintaining the status quo.

Is the noble Lord aware that the Conservative Party in Scotland had precisely the opposite rule—that in order to be on the list you had to stand in a constituency?

I am most grateful. Every day I come to work in your Lordships’ House I learn something, and that is today’s learning experience. I had no idea that that was the case. Maybe at some stage—I will not take up your Lordships’ time with this now—somebody will explain to me why that was the case.

Perhaps I can add to the amount the noble Lord has learnt today. It was not really the case that the people of Wales wanted to abandon dual candidacy—the Labour Party in Wales was very keen on that. Consultation produced a total lack of interest on the part of the people of Wales. However, although the system of election is better than first past the post, it is rather chancy. Not allowing dual candidacy actually increases the chances of strange results happening. For example, in the last Welsh elections the Conservative Party was extremely successful, led by a leader who was not able to be a constituency candidate because he was a list candidate. He was so successful and they won so many constituencies that he lost his list seat. It does enhance the problems of the system.

I am very grateful to the noble Baroness for continuing my education. I am better informed than I was when I rose to speak. I have to say that when I started in my political life, the people of Wales and the Labour Party were almost synonymous. In any event, one of the consequences of our generous devolution of power has been that with proportional representation in the political colour of the United Kingdom, parties have taken advantage of opportunities. I accept that and it is all part of democracy.

I am not arguing for maintaining the status quo because of the outcome. In fact, I pray in aid Arbuthnott. The Arbuthnott commission was set up to look into constituency boundaries for the Scottish Parliament, because there was an issue of divergence of boundaries between the Scottish Parliament and the United Kingdom Parliament, and voting and representation in Scotland. I have an extract of the commission’s report, entitled Putting Citizens First: Boundaries, Voting and Representation in Scotland. I am looking at paragraphs 4.5 onwards. In moving his amendment, my noble friend quoted from Arbuthnott. I do not intend to quote all these 12 or 13 paragraphs, but they seem to set out a very coherent argument for why it would be inappropriate to depart by law from what has become the practice of dual candidacy.

With all due respect to my noble friend, I will read the conclusion, paragraph 4.60, which in a sense contradicts some of the thinking. It states:

“The Commission believes that preventing dual candidacy would be undemocratic and agrees that it would place”—

and here I think it is quoting a witness—

“‘an unnecessary restriction on the democratic rights of potential candidates, parties and local electors to have as unrestricted a choice as possible in an election’.”.

Certainly, in Scotland, as a consequence of divergent party practice, in a situation that permitted dual candidacy, there is a belief that people took advantage. In my view, political parties just need to learn to make the best of the circumstances in which they are operating and then we can all take advantage of the circumstances, rather than changing the circumstances or the opportunities that other people take advantage of.

My Lords, in introducing his amendment, the noble Lord, Lord Foulkes, has given us an opportunity to look at a number of the issues that have arisen with regard to the operation of the electoral system. As my noble friend Lord Steel said, when we were legislating in 1998 it was not really possible to foresee all the implications and consequences of it. Therefore, we have had a useful opportunity to highlight a number of the issues and concerns that have arisen.

As the noble Lord, Lord Foulkes, says, Amendment 1 identifies a lacuna, which, to be fair, I am not sure has been highlighted very much in the past. My noble friend Lord Steel pointed out a variation on that with regard to the role of the Presiding Officer, who gets elected on a list basis as opposed to a constituency basis. Perhaps I may add that Mr George Reid did not stand again so the issue did not arise, whereas Mr Alex Fergusson always indicated that he would seek to stand again as a Conservative. No doubt he would have had to win the nomination of the Galloway Conservatives. It may also be said that it would have been open to my noble friend Lord Steel to have sought again to put his name forward in the Liberal Democrat list for Lothian. Although I did not live in Lothian, had I done so I certainly would have voted for him.

The noble Lord, Lord Foulkes, has raised an important point. No doubt with some work he has found an interesting way to address it. As he properly says, currently a seat vacated by an individual candidate who was returned as a regional Member remains vacant until the next general election. The noble Lord proposes that a poll is held across the whole region to select a new Member. Calculations would ensue upon that—he set that out very clearly and I do not propose to repeat it—to identify who would succeed.

The noble Lord is right to point out that a regional seat vacancy has not yet been caused by an independent Member vacating one. I share his view. I bear no ill will towards Mrs Margo MacDonald for being the only independent Member. Not only do I bear her no ill will but I think that everyone who knows her would take the opportunity to wish her well. My experience is that she has always made a very robust and independent contribution to the deliberations of the Scottish Parliament, and long may that continue, although we do not always agree with her.

We should remember that voters continue to be represented by their constituency MSP and several regional MSPs. It is an important issue, which, given that it is novel, I would wish to look at. If we did anything, it would be important that it commanded consensus among all the parties because it is an important part of our electoral system. To commit from the Dispatch Box without having taken proper soundings among all the parties would be inappropriate, but I hope that we can get an opportunity to take soundings to see whether this gap can be plugged, and plugged suitably to take account of the position of a Presiding Officer as well.

The other amendment moved by the noble Lord, Lord Foulkes, would allow candidates to stand for both constituency and regional polls, and both he and my noble friend Lord Steel indicated some discontent from their own experiences with the current system. The noble Lords, Lord Foulkes and Lord Browne, quoted from the Arbuthnott commission, which stated that it was,

“not convinced that there is any evidence to support the claims made regarding these perceived problems. There is no survey evidence to suggest that dual candidacy is an issue for voters, or a disincentive to their participation in the political process. Few of our consultation responses raised dual candidacy as an issue, nor was it raised spontaneously in our focus groups”.

I am certainly aware from my time in the Scottish Parliament that colleagues representing Orkney would find that not many regional list candidates would bother to get that far, although occasionally it was quite useful to have regional-list MSPs in order to pass on some of the more difficult cases. If a constituent was clearly not satisfied with what you had done on their behalf, and you would be surprised if anyone would be able to satisfy them, it was always useful to have another seven MSPs with whom you could share the burden.

That said, this would be a significant change to the system for electing Members of the Scottish Parliament. The question was raised with regard to Wales—my noble friend Lady Randerson and the noble Lord, Lord Wigley, are in their places. My understanding is that objections were raised by three of the four main political parties in Wales when this was brought forward. The noble Lord, Lord Foulkes, asked me to explain why this position arises. In our debate before we went into Committee I was asked at one stage to explain the policy of the Scottish National Party, and now I am being asked to defend the position that was brought about by the previous Labour Administration, of which the noble Lord, Lord Browne, was a most distinguished member. It actually arose from a proposal in the White Paper, Better Governance for Wales, published in June 2005. It is fair to say that there is no reason why the position in Scotland should be the same as that in Wales. There is an automatic assumption that the systems are always going to be the same, but I think it is reasonable to say that there can be variations tailored to suit particular requirements in different parts of the United Kingdom. I do not think it follows that because Wales has not gone down the route, Scotland should not do so either.

The noble Lord, Lord Foulkes, indicated that a later amendment of his would propose a general review of the electoral system. He will be aware that the Government have stated their intention to consider what has been said about a review of the electoral system in the reports of both the Calman commission and the Arbuthnott commission. There is obviously some support for this in some quarters, but it would be possible to take forward such a review only with the full support of the Scottish Parliament as well. The Committee will be aware that quite a number of consultations are under way. The most crucial one at the moment is on the referendum, and in a moment I will deal with the amendment spoken to by the noble Lord, Lord Browne, on the coincidence of election dates. The Government are committed to looking at the issue of fixed-term Parliaments and whether the Scottish Parliament should move to fixed terms. That will generate another consultation. Perhaps this is not the most appropriate and propitious time to start a review of the electoral system, although I repeat that the Government have indicated their intention to consider a response to both Calman and Arbuthnott on that point.

The amendment moved by the noble Lord, Lord Browne, seeks to allow the Scottish Parliament to move the date for parliamentary elections by up to 12 months either way when it falls in the same year as either an early UK general election or a European Parliament general election, so long as the new date is not within six months of either of those elections. He mentioned that when this was debated in the House of Commons, there was more of a focus on the then quite likely coincidence of a Scottish and a Westminster election in 2015. I moved an amendment during the passage of the Fixed-term Parliaments Bill through your Lordships’ House that changed the date of the next Scottish election so that such a clash would not occur. The Government are already committed to carrying out a detailed assessment of the implications of the two elections coinciding on the same day and to consult on the possibility of moving permanently to five-year terms for the Scottish Parliament. We will make a more detailed announcement of our plans in due course.

If any future consultation is in favour of moving the Scottish Parliament to five-year terms, that would solve the problem of a clash with both scheduled UK elections and European parliamentary elections, as all three will then be on five-year cycles scheduled for different years. That said, there will always be a risk that an early UK general election could reintroduce a clash of dates due to the resetting of the parliamentary timetable. However, if there are concerns about that happening, I hope the noble Lord will agree that that would be an important issue to raise in the context of a consultation on moving to a five-year fixed term for the Scottish Parliament, as we intend to do.

We are committed to considering a change to the length of the term of the Scottish Parliament. It is an appropriate concern for the noble Lord to have raised, but I hope he would agree that this Bill is perhaps not the place to deal with it. However, it is germane to the consultation that is about to take place. That would be the appropriate place in which to consider it. In these circumstances, I hope that noble Lords will not press their amendments.

My Lords, as always, that was a really helpful reply from the Minister. We are now getting used to helpful replies from the noble and learned Lord, Lord Wallace, for which I am grateful.

I was hoping that he would answer the question which the noble Lord, Lord Evans of Temple Guiting, did not. I was sure that he would have had exactly the same brief from the excellent civil servants the noble Lord, Lord Evans, had, and that it would not be too difficult for him. As it turned out, it was not, so I am grateful to him for explaining it.

As I said in my introduction to the amendment, I am a little equivocal about it anyway. Perhaps I may return the flattery that I received from my noble friend Lord Browne of Ladyton, whom I thank for his kindness. Now one or two people will ask me why they were not invited to the party, by the way; that is the only problem that I have. My noble friend explained extremely well why we should leave it to the political parties and wait for the promised wider review of the electoral system. I understand also that my right honourable friend Mr Peter Hain is suggesting that Wales should move back to first past the post elections for the Welsh Assembly, which seems like a wonderful idea for those of us who are Neanderthal first past the post supporters—so there is even discussion there. Therefore, I shall not press Amendment 16.

I do feel strongly about Amendment 1, because this matter should be sorted out. I am grateful to the Minister for his reply. As I understood it, he said that he would take the matter away and consult other parties, and that if there was some consensus he would come forward with an amendment on Report. He is nodding, so I am not jumping to conclusions. On that basis, I am quite happy to withdraw my amendment.

Amendment 1 withdrawn.

Amendment 2 not moved.

Clause 3 : Supplementary and transitional provision about elections

Amendment 3

Moved by

3: Clause 3, page 3, line 25, leave out from “powers)” to end of line 34 and insert “after subsection (1) insert—

“(1A) Subsections (2) to (11), except subsection (9), apply also to the power of the Scottish Ministers to make an order under section 12.””

My Lords, Section 113 of the Scotland Act 1998 makes provision about the scope of subordinate legislation powers in that Act. Clause 3(1) of this Bill amends Section 113 of the 1998 Act so that it also applies to Scottish Ministers’ new powers to make subordinate legislation about the administration of Scottish Parliament elections under Section 12 of the 1998 Act.

The amendment replaces Clause 3(1) with a provision that has the same effect and restructures Section 113. This is intended to make it easier for provisions in this Bill or in future legislation to provide that Section 113 applies in relation to other powers that may subsequently be conferred on Scottish Ministers. I beg to move.

Amendment 3 agreed.

Clause 3, as amended, agreed.

Clause 4 : Presiding Officer and deputies

Debate on whether Clause 4 should stand part of the Bill.

My Lords, I am very grateful to the Government for including in the Bill the second part of this clause on the election of the Presiding Officer, possible deputies and temporary deputies. It arose directly out of evidence that I gave to the Calman commission, which arose in turn from my own experience when, despite trying to juggle radiotherapy for prostate cancer with my duties in the chair, I was absent for some time, and the Parliament found that it had no provision to enable it appoint even a temporary deputy to help take the load. I am glad that this clause appears in the Bill. I am thankful and I welcome it.

The other point that I wish to make is slightly astray of the Bill. Members of the House will note that under Clause 4(3) the Parliament has 14 days from polling day to meet and elect a Presiding Officer. That is in stark contrast to what happens here. I have on other occasions severely criticised the haste with which the present coalition was put together, which I thought was entirely unnecessary. Under the Scottish arrangement, which was already much looser, because of proportional representation it was anticipated before the first election that a coalition was more likely than not and therefore that there was plenty of time. My noble and learned friend was actively involved and will remember how long it took, even with a more limited agenda, which the Scottish Parliament has compared with Westminster, to put a coalition together. It was done with great care and skill and it worked. Without going into extraneous matters, I think that the haste with which the coalition was put together at Westminster was a mistake and that perhaps they can learn by reading Clause 4 of this excellent Bill.

My Lords, I am grateful to my noble friend Lord Steel. I can indeed confirm that he made representations to the Calman commission on this point, not least in the light of his own experience. His proposal was supported by the then Presiding Officer of the Scottish Parliament, Alex Fergusson, and therefore the Government were happy to agree with the Calman commission’s recommendation that there should be greater flexibility in the running of the Scottish Parliament.

My noble friend is also right to point to the other parts of the clause, which gets rid of the restriction that the Presiding Officers and their deputies have to be appointed at the Parliament’s first meeting. This inflexibility caused problems during the last Session, given the very close electoral result. This meant that parties had difficulty in deciding quickly to release one of their members to be Presiding Officer.

My noble friend made comments about the time taken to form coalitions. In 2003, we did so in a more measured way than perhaps in 1999, when we were under greater pressure. However, we did not have the markets waiting on every twist and turn of the coalition negotiations. There are important differences between Westminster and Scotland, although no doubt we all learn lessons from experience. I hope that what we are putting in here will provide additional flexibility in the election of the Presiding Officer. It has been supported by the previous Scotland Bill Committee in the Scottish Parliament, and the current Scotland Bill Committee has also indicated that it is content with this clause.

Clause 4 agreed.

Clause 5 : Scottish Parliamentary Corporate Body

Amendments 4 and 5 not moved.

Clause 5 agreed.

Amendment 6

Moved by

6: After Clause 5, insert the following new Clause—

“Sitting calendar

(1) Schedule 3 to the 1998 Act (Standing orders—further provision) is amended as follows.

(2) After paragraph 7 insert—

“Parliamentary calendar8. The standing orders may include provision for ensuring that the Parliament shall—

(a) sit on at least 30 weeks in each calendar year,(b) meet on at least three days in each week that it sits, and(c) not adjourn for a period of more than 60 consecutive days.””

My Lords, it might be said that by moving the amendment—and even by discussing it, let alone coming to any decision on it—Westminster is interfering in the work of the Scottish Parliament. However, I have raised the issue because it is a dissolved Parliament and, ultimately, until such time as there is an independent Scotland—heaven or the electorate forbid—it is the responsibility of this sovereign Parliament.

I raise the issue also because for four years I served, along with the noble Lord, Lord Stephen, and others, as a Member of the Scottish Parliament. I came across a huge number of people who were absolutely astonished when they found out that the Scottish Parliament sat for only one and a half days a week in plenary. Members of the Scottish Parliament are paid a substantial amount of money—something like 87.5 per cent of the salary of a Member of this Parliament—and it is seen as a full-time job. Of course, just as MPs have responsibilities in their constituencies, MSPs have constituency responsibilities, too—at least, constituency MSPs do. Committees also meet on a Tuesday and a Wednesday morning. Even so, it is difficult to explain that the Scottish Parliament sits for only one and a half days in the weeks that it is sitting.

As a result of that, some strange things happen. It is amazing. There are other former Members of the Scottish Parliament here, including the noble Lord, Lord Selkirk, who can give their experiences in relation to this. In almost every debate in which I took part in the Scottish Parliament, the speeches were limited to four minutes. Occasionally, we get time limits here but it is ridiculous to expect people to be able to put forward a coherent argument on a major issue of education, the health service or whatever they are dealing with in four minutes.

Compared with the House of Commons, there are also relatively few opportunities for Statements and Urgent Questions. Recently, under Speaker Bercow in the House of Commons, there have been lots of Urgent Questions. In the time that I was in Holyrood, I cannot remember more than one or perhaps two Urgent Questions. There was not the time. It was difficult to fit anything new or additional into the programme and timetable of the Scottish Parliament.

I find the Report stages of Bills there quite astonishing. These are important Bills dealing, as I say, with important issues such as education, social work, local government reform or the health service. They are rushed through. Sometimes, on an amendment being dealt with on Report, people are allowed to argue a case for only 30 seconds. It is ludicrous that they should be squeezed into that length of time.

Again, Question Time, partly but not completely because of the time constraints, becomes a bit of a farce and a very predictable occasion. I could almost write the script for every First Minister’s Questions, with who will come in and how many of them there will be. It does not have the spontaneity of—

I am most grateful to the noble Lord for giving way and sorry that I was not here for the start of his speech; I had to go to another meeting. Could he help me, as I have not had his experience in the Scottish Parliament? Is there some restriction that prevents it from sitting for more than one and a half days a week? Is that not a matter for the Scottish Parliament to decide itself?

As always, the noble Lord is perceptive. I was going to come on to say that but will say it now. I put down the amendment some time ago and am now very pleased to hear that, since then, the Scottish Parliament has started talking about sitting at greater length. The purpose of the amendment was to try and get a debate on this, not just here but in the Scottish Parliament. I am glad that it has achieved that. After this debate finishes—if other noble Lords want to participate—were the Minister to give some indication as to what is happening in the Scottish Parliament in relation to its sitting times, more time for debating these issues and Report stages allowing fuller consideration, I would of course be satisfied and willing to withdraw the amendment. I am very glad I raised this as it is long overdue. If it is now being dealt with, no one will be happier than me.

My Lords, I confessed that I knew nothing about it, but it seems a very sensible proposal. I have in the past suggested that because the Scottish Parliament sits only one and a half days a week, a solution to the West Lothian question would be that all Scottish Members of Parliament should sit in the Scottish Parliament for one and a half days a week and on those one and a half days the House of Commons could discuss those matters not related to devolved issues. This has not proved very popular with Members of the Scottish Parliament, for reasons that I cannot imagine. So in following the advice of the noble Lord, Lord Foulkes, they might protect themselves from being endangered by people like me, who might suggest that there were synergies in combining the roles of a Member of the House of Commons with a Member of the Scottish Parliament. I am sure that the Scottish Parliament will show considerable gratitude to the noble Lord in drawing this matter to public attention if, indeed, it has already got that Parliament rethinking its sitting days.

My Lords, I agree very much with the first contribution that the noble Lord, Lord Forsyth, made. This is essentially a matter for the Scottish Parliament, which has wide discretion in this area. Unfortunately, I cannot agree with the suggestions that he made in his most recent contribution. I agree with a great deal of what the noble Lord, Lord Foulkes, said. I am sure that others who have been in the Scottish Parliament, most notably my noble and learned friend Lord Wallace of Tankerness, also agree with a great number of his suggestions, most particularly about the guillotining of virtually every contribution made in the Scottish Parliament. The noble Lord is absolutely right; it is impossible to make a full and weighty contribution when the guillotine constantly comes after sometimes less than four minutes. These issues should be addressed, and I hope that in addressing those issues the Scottish Parliament will look to the contributions of former Members and those who have had experience of the Parliament. But I do not think that it should be as a result of an amendment proposed through the House of Lords that those matters are best addressed. I am sure that the Minister will explain that those matters are being looked at; I understand that there is a concerted effort to look at changing the way in which the Scottish Parliament operates. That is all the more important in the context of more powers being granted to the Scottish Parliament; as the Parliament grows and develops, these issues should be tackled, and the noble Lord, Lord Foulkes, made an extremely valuable contribution in pointing to the Parliament the way ahead.

If I may, I would like to ask a very brief question to the Minister in this connection. During the Calman commission, we recommended that more time should be given for the final stages of Bills in the Scottish Parliament. It seemed to us that with many Bills, voluntary organisations, charities or other worthy bodies would have recommendations to make but would get virtually no changes in the final stages of the Bill because procedures were so rapid and everything went so quickly. My understanding was that that was under consideration by the Scottish Parliament, and I wonder whether the Minister could give us the up-to-date situation on that subject, if he has the facts readily at hand.

This is the first time that I have spoken at this stage of the debate, so I renew my declaration of interest in the Calman commission. I am somewhat surprised to find that I am standing here at the Dispatch Box, and I hope that the Committee does not find it strange that two lawyers who were both on the Calman commission now find ourselves on opposing sides of the bar but pulling in the same direction. I hope that it reflects the cross-party approach to the Bill.

To my noble friend Lord Foulkes of Cumnock I can say that I was very pleased, particularly given what has been said already, that I was one of those invited to his party, and that I very much enjoyed it. So if I disagree with him on any point, he can be assured that it is not because I am biting the hand that fed me.

On the issue of timetabling, I think I am right in saying that there are states within the United States that have within their constitution maximum times during which legislators can sit. They take the view that the longer they sit the more mischief they can make. That might be one approach. In Britain, we tend to take the opposite view—that we pay legislators to legislate, and if they are not sitting in plenary session, they are clearly not worth the taxpayers’ money.

The court of public opinion is the important element here. I suspect that it modified the sittings of this Parliament, given the criticisms that were made about the long summer recess, but clearly it may also very well have worked in relation to the Scottish Parliament, given the proposals. In particular, the amendment that my noble friend has put down may very well have spurred some action on it. With these words, I look forward to hearing from the Minister.

My Lords, the amendment, which was tabled by the noble Lord, Lord Foulkes, would enable the Scottish Parliament’s standing orders to make provision to ensure that the Parliament would have to sit on at least 30 weeks in each calendar year; that it met on at least three days in each week that it sits; and that it does not adjourn for a period of more than 60 consecutive days. In moving the amendment the noble Lord certainly described some frustrations which I can readily identify with, although we never actually served at the same time in the Scottish Parliament. Although it does not relate to a restriction on back-bench time, I remember one Conservative opposition day when Mr Murdo Fraser was the Conservative spokesman on the economy and enterprise and I was the Enterprise Minister, and the Deputy Presiding Officer announced: “A Conservative debate on the future of Scotland's economy. Mr Murdo Fraser, you have seven minutes”. That did not really seem to give justice to the issue in hand.

That said, when dealing with the internal arrangements of the Scottish Parliament, it is important that we remember the words in the White Paper which the previous Government published when Mr Donald Dewar was Secretary of State for Scotland, in 1997. The White Paper said:

“The Government intend the minimum of legislation to establish the Scottish Parliament; and wherever possible to leave the Scottish Parliament to decide for itself what its procedures should be”.

This Government believe that that statement holds as true today as it did in 1997. The Government do not believe that it is appropriate for the United Kingdom Parliament to place restrictions on the freedom of the Scottish Parliament to administer its own affairs. It is now embedded within our UK constitutional arrangements, and our view is that the Scottish Parliament is capable of making its own changes to procedures as it sees fit.

As the noble Lord, Lord Foulkes, mentioned, on 21 December the Standards, Procedures and Public Appointments Committee of the Scottish Parliament published the phase 1 report of its inquiry into the reform of parliamentary business, which is appropriately entitled Remodelling the Parliamentary Week. I do not know whether that happened as a result of or in spite of this amendment, but as the noble Lord indicated when moving the amendment, it certainly was timely. The committee undertook its inquiry into parliamentary business last September in order to review the Parliament’s procedures and recommend areas for improvement and change. As I indicated, it is a phase 1 report. The aim of the inquiry is to give the Scottish Parliament greater scrutiny and responsiveness to emerging issues of importance to the people of Scotland.

The report makes a number of recommendations. My understanding is that they will soon be debated in the Scottish Parliament and, if agreed, implemented after the Easter Recess. Recommendation 1 states,

“that the sitting patterns of the Parliament should be changed to allow committee meetings to take place on Tuesday, Wednesday and Thursday mornings with Chamber business on those afternoons”.

This would mean that the Parliament will sit for three days a week when it is sitting, which would meet part of what the noble Lord’s amendment aims to do. The report does not make any recommendations on the other two parts of the noble Lord’s amendment—to ensure that the Parliament sits on at least 30 weeks of the calendar year, and not to adjourn for a period of more than 60 consecutive days. However, the report concluded that,

“given the need to protect the”—


“between the Chamber and committee business, and to protect time for engagement with civic Scotland, the amount of time allocated to each of these priorities at present is broadly correct”.

I have however noted that as the inquiry evolved, it also looked at how the likely addition of new powers and responsibilities proposed in this Bill would need to be taken into account, as further timetabling commitments will need to be made to scrutinise the use of these new powers for the Scottish Government and Parliament. As my noble friend Lord Forsyth indicated in a question, where does the responsibility lie? It is for the standing orders of the Scottish Parliament.

My recollection, though, is that there is also a considerable amount of flexibility. When I was a Member of the Scottish Parliament—more recent Members can correct me—although the normal starting time on a Wednesday, with time for reflection, was 2.30 pm, noble Lords will have realised that yesterday the Parliament managed to sit at 1.35 pm in order for the First Minister to make his statement launching his consultation document, no doubt so that he could then hot-foot it to his appointment with the world’s press at 3 pm in the Great Hall at Edinburgh Castle. I recall other occasions—for example, when it was clear that stage three of the Bill was going to take much longer—when there was flexibility to sit earlier or later.

My noble friend Lord Selkirk asked about the recommendation from the Calman commission regarding the separation of time to allow more time at stage three if new amendments come up, which would engage more stakeholders. I indicate to him that that is obviously a matter for the Scottish Parliament, but I will write to him and other Members of the Committee who are participating in our deliberations to give our understanding of the up-to-date position with regard to the Scottish Parliament’s response to that recommendation.

The Scottish Parliament, now 12 or almost 13 years old, is capable of reviewing its own processes, but we are showing our willingness to look at this issue too. I hope that in those circumstances the noble Lord will feel that the amendment is unnecessary and withdraw his amendment.

My Lords, what surprises me is how the Scottish Parliament in its procedures seems more rigid and in its lack of flexibility seems more sclerotic than even this Chamber, let alone the House of Commons. We have already heard examples from the noble Lord, Lord Stephen, about having less than four minutes to contribute to a debate, which are true. We have heard from the noble Lord, Lord Selkirk, about the recommendations regarding later stages being rushed and civic society not having an opportunity to participate fully, and I have appreciated that as well. The Minister himself said that getting everything in when you are given only seven minutes to talk about the economy is a formidable task.

Under the proposals, all that will happen is that they will meet for three days but only for half a day each, so it is still really effectively only a day and a half. That is not a huge amount extra. Of course it is up to the Scottish Parliament, and I am going to withdraw the amendment on that basis, but, speaking as a member of the public in Scotland rather than a nominated Member here, I would expect that the Scottish Parliament might sit rather more than that and spend rather more time discussing some of the major issues that it has to deal with.

Perhaps we should not be saying this because we are non-elected and they all think of us as Neanderthals. I have been around for an awfully long time; I have just had a birthday, as someone diplomatically pointed out earlier. Perhaps we should not be lecturing the Scottish Parliament, but it is just a wee bit strange that it is not lengthening the times of its plenary sessions a little. I shall leave it at that and withdraw.

Before the noble Lord withdraws his amendment, could he inform us whether there is a standing committee in the Scottish Parliament that keeps these matters under review, or is it the case that this is just an ad hoc inquiry?

I think there is a procedures committee that deals with this question in a review.

There are people who have held more distinguished positions than I did in the Scottish Parliament as Deputy First Minister, acting First Minister and Presiding Officer and who have been around for a long time, but I got the impression that the Scottish Parliament was very set in its ways, and for a new Parliament that is very strange. I tried gently to suggest some innovations, when I was a Member and I had some right to do so, and it was very reluctant to accept any of them. It is ironical that we have had more changes, improvements and developments of our procedures in the House of Lords during my time here than I saw in all my time in the Scottish Parliament. I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Clause 6 agreed.

Amendment 7

Moved by

7: After Clause 6, insert the following new Clause—

“Discussion of reserved matters

(1) Schedule 3 to the 1998 Act (Standing orders—further provision) is amended as follows.

(2) After paragraph 7 insert—

“Reserved matters8. The standing orders shall include provision for ensuring that the Parliament shall not discuss items in Schedule 5 (reserved matters) except on a motion to make representations to the United Kingdom Government.””

Members will be getting fed up with my voice by now. I am glad that I withdrew the previous amendment and did not move Amendments 4 and 5. I tabled those amendments but I could have put down dozens more. There is a whole range of issues that we could have discussed. If we had wanted to cause trouble—heaven forbid that I should cause trouble here—I could have tabled dozens of amendments and delayed us. The fact that we are getting though the Bill relatively rapidly shows the good will of not just the Front Bench but the Back Benches on this side towards the coalition Government. Whether they deserve it is another matter, but they are getting it.

I come now to the discussion of reserved matters, which relates in some ways to the previous amendment. In my time in the Scottish Parliament—I think this will apply to other Members here who were Members of the Scottish Parliament—it was very frustrating that the SNP in particular would use up the limited time available, including government time, for discussion of reserved matters. These included foreign affairs and defence; they went on and on about these areas. It is understandable that they should discuss them where they impinge on some of the Scottish Parliament’s responsibilities, but it worried me that it restricted the time for discussion of very important matters.

We have devolved to the Scottish Parliament some of the major areas that affect the lives of people in Scotland, such as all aspects of education. However, there were no really detailed debates on it. The right reverend Prelate the Bishop of Chester would be astonished if he came to the Scottish Parliament and saw how little time it spends on discussing the details and development of education in the forum of the plenary sessions. Then there is the development of the health service, with telemedicine and all the new developments that are taking place; and social work and the links between it and education and housing. There are many issues that the Scottish Parliament should be discussing, but it never seems to get around to doing so. These are vitally important issues.

This is a related issue but it is slightly different. I also get the feeling that, as the SNP has moved into the ascendancy, first as a minority and now as a majority Government, it seeks to operate almost as a de facto if not de jure independent Parliament. It wants to take on more responsibilities and pretend or imagine that it is dealing with all these issues. I had occasion to raise this with Sir Gus O’Donnell, now the noble Lord, Lord O’Donnell, in a question about the Permanent Secretaries—first Sir John Elvidge and, more recently, Sir Peter Housden, who has gone native since he moved. He is from Shropshire originally, a lovely county of England, as I know only too well. They seem to be advising the Scottish Executive on how to move towards independence. They seem to be giving them all the advice, guidance and detail that they need and, in Sir Peter’s case, almost encouragement to move towards independence. I hope that Sir Jeremy Heywood—he has a more pragmatic and sensible view on this than Sir Gus O’Donnell, but perhaps I should be careful about saying that—will look at things in a more pragmatic and sensible way and remind Sir Peter Housden that he is still a member of the UK Civil Service and still owes some loyalty to the Crown and the United Kingdom Parliament although he has been seconded to the Scottish Parliament and should not be dealing with these matters.

It is fair enough for the Scottish Parliament to consider reserved matters when it wishes to make representations on them to the Westminster Parliament, particularly to the House of Commons. However, for it to have debates on nuclear weapons, defence policy, foreign affairs issues, reserved aspects of welfare or on major economic issues which are still the responsibility of this Parliament and the UK Government, seems to me not just wrong in principle but a waste of the Scottish Parliament’s valuable time. I hope that we will send a message to it that—

Obviously we come to this question from different perspectives, but if the amendment were passed would it not preclude debate on matters such as industrial and trade links abroad, which are relevant to the economy; matters relating to cultural exchanges abroad, which I would have thought would certainly be part of the remit of the Scottish Parliament; and, indeed, debate on a host of other matters which link through to the European Union, where there is clearly an interest in Scotland having a voice in those areas?

It is certainly not intended that the amendment should do that. It says,

“except on a motion to make representations to the United Kingdom Government”.

I should have thought that the areas that the noble Lord mentioned are ones on which the Scottish Parliament might wish to make representations to the United Kingdom Government. However, my noble friend may have a point in that the amendment’s wording is not as exact as it could be. There are areas where the Scottish Parliament contributes in this regard. For instance, when I was a development Minister, I encouraged it to take an interest in development matters, just as local authorities and private enterprise do. However, it is a different matter when the Scottish Parliament tries to deliberate on policy in relation to these issues.

This is a difficult area and the noble Lord, Lord Wigley, is right to point to a difficulty. Nevertheless, this Parliament is very careful not to talk about areas that are devolved to the Scottish Parliament. We are sensitive—perhaps sometimes oversensitive—about not dealing with those areas. As I think my noble friend Lord Sewel said in an earlier debate, we still have the right to legislate on any of them. If we wanted to, we could override the decisions of the Scottish Parliament and tell it what to do. However, we do not do that. We are very sensitive and very cautious, perhaps even oversensitive, as I say, but the Scottish Parliament does not reciprocate that sensitivity and caution as regards trampling on reserved areas.

The noble Lord, Lord Steel, will recall that he made the original ruling about the areas that could be discussed. That gave the Scottish Parliament an opportunity to discuss certain areas which it has subsequently expanded and exploited to a degree which was not intended at the time that the noble Lord made that ruling when he was Presiding Officer. I hope that we can send a message to the Scottish Parliament that it should respect our reserved areas just as we respect the devolved areas.

Perhaps I may make a brief intervention in support of my noble friend’s amendment. I, too, should declare an interest. I was at the famous party also, and if I had thought that visiting a football park could be so much fun, I might have gone before now.

I support the amendment because I am particularly exercised about the extent to which the reserved area of foreign affairs is often affected by debate in the Scottish Parliament, and at some of the attitudes that are adopted by Members of the Scottish Parliament as they go abroad. In particular, in the English-speaking Commonwealth, where BBC News, BBC Parliament and Sky are available, the interlocutors among us who have been practitioners in foreign affairs are perhaps watching debates in the Scottish Parliament or are picking up stories on foreign affairs that come out of it that can make life difficult for our people who are involved in sometimes sensitive negotiations. Usually, such debates are set against a background of imperfect knowledge as to why issues are being raised and discussed.

My noble friend Lord Foulkes made a valid point when he said that we go to great lengths in this Parliament to ensure that we do not trespass on devolved affairs. Since the beginning of the Scottish Parliament, there has been a laxness of attitude to straying into reserved areas. I am not suggesting that Members of the Scottish Parliament, be they in the Scottish Government or otherwise, should be grounded, but I ask your Lordships to take into account that one of the conventions of this Parliament is that when you travel abroad you do not criticise your own Government, even if it is a Government of a different colour to the party that you are a member of. That can increasingly be undermined by interventions from people who do not owe any loyalty to the concept of the foreign policy of the United Kingdom.

This may seem an arcane part of the debate and, without doubt, it will be portrayed as carping about the magnificent foreign policy of the Scottish Parliament, but there are men and women around the world today doing very difficult jobs in sometimes difficult circumstances. They are not helped by voices off.

My Lords, I would not like it to be thought that the views expressed in the previous two interventions were partisan in any sense. I certainly identify with those comments.

It appears to me that if the principle of subsidiarity distributes powers up and down, there should be clear and at least conventional understandings as to the limitations of interventions in respect of matters that are principally for one tier of government. This is not an absolute distinction. In the Lisbon treaty affecting the governance of the European Union, provision has been made for national Parliaments to participate in dialogue with the institutions of the EU about matters in which they are interested. Of course, we have in this House a Select Committee on European affairs and we offer thoughts and advice, but do not attempt to give any impression—and I believe we do not—that we are actually responsible for the matters that are being decided upon. Too often, the voices expressed, particularly by the Scottish National Party, attempt to give that impression.

Although it may not be a requirement that we lay down the law, as it were, it is a worthy motive that inspired the amendment and it emphasises what should be a clear convention. If the Scottish Parliament or any part of it, or a majority in it, want to engage the Government of the United Kingdom in discussion, it would be sensible to adopt the noble Lord’s amendment—and I hope that Members of the Scottish Parliament will take note of these recommendations.

My Lords, I raise one point on the amendment, which is slightly wide of the purpose and message of the noble Lord, Lord Foulkes. Can my noble and learned friend explain why energy is a reserved matter in the Scotland Act, but, because planning powers are devolved to the Scottish Parliament, the Scottish National Party Government see fit to do nothing about the Torness nuclear station and others in Scotland? After all, when I was happy to be in government dealing with the Electricity Bill, we managed to include powers for the interconnector to send nuclear-generated electricity south of the border. To my mind, that will stop unless something can be done to reverse that decision. It seems a total anomaly in the Scotland Act that a reserved matter such as energy cannot be fulfilled for nuclear energy because of the planning powers of the Scottish Parliament.

My Lords, just to show that the noble Lord, Lord Foulkes, and I have not formed some kind of alliance for the purposes of the Bill, I do not agree with the amendment. I agree with the sentiment, which is that the Scottish Parliament should, in so far as is practical, confine its activities to its responsibilities, but to try to write that down is capable of being interpreted as trying to gag the Parliament. I can imagine circumstances in which it might wish to discuss things that are not within its immediate bailiwick and which might not be for representations to the United Kingdom Government. For example, were I a Member of the Scottish Parliament at the moment, I would want a debate on how the Bank of England, rather than the Bank of China, could become the lender of last resort to an independent Scotland. Under the amendment, it would be impossible for one to have that debate. As the First Minister has raised that startling question in the past few days, it would be entirely appropriate for people to raise such issues.

On a more serious matter, at the end of the day, this House and the other place work on the basis of convention. A convention is that we do not discuss devolved matters, and that is respected. That relates to the leadership of the organisation. One of the tragic things in the Scottish Parliament, as the noble Lord, Lord McConnell, pointed out earlier, is that the leadership seems determined to upset the neighbours and to use that to achieve a political objective. It is fair enough to use the Scottish Parliament as a platform to make the case for policy and ideas and to try to persuade the voters, but to use it as a platform in order deliberately to create dissent and division is not the purpose of it. I suspect there is nothing that we can do by way of passing amendments to the law that will change that. To change the way in which the Parliament operates it is necessary to change the calibre and nature of the leadership in the Parliament itself.

My Lords, we recognise the frustrations that have been expressed here, especially that this House and the other place have a self-denying ordinance and convention that we do not discuss devolved areas, but that is not respected in the Scottish Parliament. Nevertheless, there are three particular problems with the amendment.

First, it seems to me pretty difficult to put down on paper a line that states that you can talk about this issue but not that one. If I may say so, the intervention from the noble Lord, Lord Sanderson, highlights that. It is true that energy policy generally, though not in renewables, is reserved to the United Kingdom Parliament. It is not just powers under Section 36 of the Electricity Act but other significant powers in relation to nuclear power that are devolved executively to the Scottish Parliament. One would not wish to stop it discussing nuclear power in that context. Similarly, one can make a case in relation to nuclear missiles and their stationing in Scotland. It has economic and social consequences for the area in which they are situated and certainly it would be difficult to discuss the consequences without being able to state whether one was for or against nuclear weapons as a whole. It is equally the case with economic issues. The noble Lord, Lord Forsyth, makes an interesting point about the Bank of England, but more generally one has to be able to discuss the wider economic context in which these issues apply. That is the first point. It is difficult to draw the line.

The second point is that, with the greatest respect, I do not think that the amendment cures the problem, as it states,

“except on a motion to make representations to the United Kingdom Government”.

I suspect that every discussion of reserved matters will be a “motion to make representations” about all sorts of reserved matters.

The third is that, whatever the rights or wrongs of the original position of the Scottish Parliament, I very much agree with the noble Lord, Lord Forsyth, that it would be wrong to try to put the genie back in the bottle by now saying, “You can’t discuss what you have been discussing for the last 10 years or so under successive Administrations”. That would be seen very badly in Scotland, so with regret, I cannot support the amendment.

My Lords, in responding to the amendment moved by the noble Lord, Lord Foulkes, I am very tempted to adopt the argument of the noble and learned Lord, Lord Boyd of Duncansby, who made the case very cogently. Of course, there is a clear distinction in many cases with regard to reserved matters. I am coming to the point raised by my noble friend Lord Sanderson which was picked up by the noble and learned Lord, Lord Boyd, as to what is reserved. It is not just that the genie is out of the bottle but paragraph 2.5 of the White Paper, published in 1997 as a prelude to the referendum and the Scotland Bill and Act states:

“The Scottish Parliament will also be able to examine devolved matters and debate a wide range of issues of interest and concern in Scotland, whether devolved or reserved”.

My recollection of the debates all those years ago was that it was understood that there would be such debates.

I also seem to recall in the early days of the Scottish Parliament, with our fledgling coalition between the Labour Party and the Liberal Democrats, that the Scottish National Party Opposition liked nothing better than to identify a reserved matter at Westminster where the Labour Party and the Liberal Democrats were on opposite sides of the argument. The SNP would wish to debate those Motions to try to drive wedges through the coalition and we usually found some way out, either by having no executive line or by tabling an amendment recognising the position of both parties. After a while the SNP gave up because it realised that it was not having the desired effect of driving a wedge between the coalition partners.

On occasions it will be necessary for the Scottish Parliament to discuss reserved matters when changes have been made that have an impact in Scotland. For example, in November last year the Parliament debated maritime safety and coastguards. I certainly share the view of the noble and learned Lord that it would be allowed if it was making representations to the UK Government. One can imagine many Motions starting with the words, “This Parliament calls on the United Kingdom Government to”, for example, “not allow the Bank of England to become the bank of last resort”, or whatever. It would not require too much ingenuity to do that.

The noble Lord, Lord Foulkes, had ministerial responsibility for international development matters in the previous Administration. While that area was a reserved matter, none the less there was a Scottish interest that was considered legitimate. I pay tribute to the work that was done in the then Scottish Parliament and Executive by the noble Lord, Lord McConnell of Glenscorrodale, in taking forward and developing a relationship between Scotland and Malawi. That was thought all round to be positive and helpful.

The noble Baroness, Lady Liddell, rightly highlighted the difficulties that people sometimes have in not knowing what the relationship is between the Scottish and Westminster Parliaments. They might read things into debates on foreign policy. Therefore, it is important that when people engage in matters of such sensitivity in whatever forum, they do so in a measured and constructive way. I remember—and not just because I took part in it myself—that one of the best debates in the Scottish Parliament was in March 2003, on the eve of the military action in Iraq. The view was that everyone else was talking about it so it would look very odd if the Scottish Parliament did not. There was no line from the Executive because the Labour Party and the Liberal Democrats took different views. It is worth recalling that I moved an amendment on behalf of the Liberal Democrats that opposed intervention in Iraq. Because of the myth that has built up, it is worth remembering that the Scottish Parliament approved military intervention in Iraq in its vote in March 2003, ahead of the event happening. However, by all accounts at the time, it was a good debate.

There will be occasions when there is an interweaving of the issues. My noble friend referred at Second Reading to the question of energy, which is a reserved matter. Renewable energy has been devolved. As the noble and learned Lord, Lord Boyd, indicated, powers under Section 36 of the Electricity Act give Scottish Ministers substantial powers with regard to the licensing of power stations. There is a connection here—even an interconnection—which makes it important that both Parliaments and Governments must co-operate in trying to ensure that, where there is shared responsibility, the issues are properly addressed.

My Lords, perhaps my noble and learned friend could help me. As time has passed and habit has developed, we have found that the Scottish Parliament can discuss anything that it wishes, and express opinions. If something like the amendment of the noble Lord, Lord Foulkes, was passed, it would be limited to things that it wished to refer to this Parliament. Of course, discussion on the question of a referendum is probably something that the Scottish Government could say was referable to this Parliament. My noble and learned friend talked about the resolutions that were passed by the noble Lord, Lord McConnell of Glenscorrodale, on helping Malawi. Is there any limit to the amount of money that the Scottish Government can spend on things that are not devolved? It would be interesting in particular to know how much money they would be allowed to spend on a referendum. My noble and learned friend will know that there is an 80-page Bill attached to the consultative paper that was produced by the Scottish Parliament. It did not just drop out of the sky in a pre-formed manner. A great deal of time and expense was put into it.

The first thing I will say in response to my noble friend is that this is not something that has just grown up over the years. As I indicated, it was anticipated from the outset—in the White Paper in 1997—that there would be this opportunity. On the specific case of Malawi, there is a provision in the Scotland Act that allows Scottish Ministers to give assistance to UK Ministers and the UK Government. The co-operation at the time between the international development department and the Scottish Executive allowed that to proceed.

My noble friend raised an important point about a referendum. The United Kingdom Government made it very clear, in our consultation paper of 10 January, that the Scottish Parliament cannot legislate on reserved matters, including on an independence referendum. We have also indicated a preference for a Section 30 order, as have the Scottish Government. By the very nature of a Section 30 order, it deals with things that are currently reserved. One of the earliest was on railways. Therefore it is inevitable that there will be some expenditure and some legitimate activity by Scottish Ministers, who have to discuss and negotiate the terms of any order—which, by definition, must relate to a reserved matter—but look forward to agreeing between the two Governments to put a Section 30 order to both Parliaments. That is clearly why it is important, not just in the context of a referendum but in the context of other areas where a Section 30 order has been used where there has been a transfer of powers from one Parliament to the other, that there is proper co-ordination and consideration. Indeed, in terms of a number of powers in this Bill, there has clearly been discussion between both Governments.

Could my noble and learned friend help with the point that was raised by my noble friend the Duke of Montrose about the position in respect of expenditure incurred on matters that are not within the legal competence of the Parliament? Who is accountable for that? Is it the Permanent Secretary as the accounting officer, the executive members or the Members of the Scottish Parliament? What, if any, sanction is there if there is expenditure that is ultra vires?

My noble friend has tabled an amendment on this issue that we will come to. I suspect that the accounting officer must have responsibility in these matters. However, as I sought to indicate, it would be very perverse if the United Kingdom Government invited a response and a consultation and then said that it was beyond the Scottish Parliament’s competence to engage in it. My noble friend raises an important point, and we will come to his amendment, which will be a proper opportunity to look at that in more detail.

As I indicated, in the case made by the noble and learned Lord, Lord Boyd, it is very difficult to draw the line. It does not cure the problem, but it is not beyond the wit to come up with the appropriate Motion to put before the Scottish Parliament. My noble friend Lord Forsyth and the noble and learned Lord, Lord Boyd, made the point that the genie is out of the bottle. Indeed, it was intended as long ago as the original White Paper that there should be an opportunity to debate these reserved matters. In these circumstances, I invite the noble Lord, Lord Foulkes, to withdraw his amendment.

I have found this debate very helpful, although it pointed out that my amendment is less than perfect. A lot of interesting issues have been raised, not least that raised most recently by the noble Duke, the Duke of Montrose, and picked up by the noble Lord, Lord Forsyth, because according to this consultative document written submissions have to go to the Elections and Constitutional Development Division at Victoria Quay. I remember asking a number of questions and, no doubt, some MSPs are still asking questions about how many civil servants there are in these divisions dealing with breaking up the United Kingdom. They are spending taxpayers’ money to employ officials to move Alex Salmond’s dream a bit closer. The noble Lord, Lord Forsyth, asked a good question, which needs to be pursued, about how much money is being spent on that and whether it is ultra vires. That is, no doubt, something that we will be taking up on another occasion. It is a very serious matter. It is not just a question of printing the document; it is a question of the civil servants who could be better employed dealing with education, which is pretty ropey and not being dealt with in a perfect manner—let us put it that way—in Scotland at the moment, or with the health service, which is under pressure in Scotland. It would be better to use that money to employ nurses, teachers and policemen rather than these civil servants. I hope the noble Duke, the Duke of Montrose, and the noble Lord, Lord Forsyth, will pursue this important matter.

The other thing that came out in remarks made by the noble Lords, Lord Sanderson and Lord Forsyth, the noble and learned Lord, Lord Boyd, and others is actually how much devolution already exists. We sometimes forget how much power has been devolved to the Scottish Parliament and the Scottish Executive. It is a wide range, relating to a number of areas, not to mention transport: the Scottish Executive have responsibility for the Scotrail franchise, a huge, billion-pound operation in Scotland; they also dealt with the relatively recent extension of the Scotrail franchise. There is an awful lot of devolution that is seldom talked about or understood.

There is a lot of sentiment behind this amendment, as expressed by the noble Lord, Lord Maclennan, and my noble friend Lady Liddell, and some deep concern about the way in which the boundary is being pushed beyond where it should be. However, in practical terms, I accept the advice of—I keep calling him my noble friend—the noble Lord, Lord Wigley, the Minister and particularly my noble and learned friend Lord Boyd, who in his brilliant demolition of my amendment showed what a marvellous Minister he will be after the next election. It was a perfect one-two-three, the perfect demolition: three serious points and you are finished; your legs are knocked from under you. After that demolition job by my very good and noble and learned friend, Lord Boyd, I have no alternative but to withdraw this amendment.

Amendment 7 withdrawn.

Clause 7 : Partial suspension of Acts subject to scrutiny by Supreme Court

Amendment 8

Moved by

8: Clause 7, page 6, line 13, leave out “The Presiding Officer” and insert “A law officer making a reference under subsection (1)”

My Lords, I will speak to Amendments 8 and 11. In seeking to speak earlier, I was confusing Clause 7 with Amendment 7; I was not trying to hurry up the noble Lord—which would have been impossible in any case.

The purpose of Amendments 8 and 11 is to include the law officers—it could be the Attorney-General, the Advocate-General for Scotland or the Lord Advocate—among those who would be responsible for publishing a reference of a part of a Bill to the Supreme Court. The Bill lays down that it should be the Presiding Officer who should publish a notice of the reference to the court in the Edinburgh Gazette, and in such other ways as the Presiding Officer considers appropriate. As the reference should probably be made in most cases by one of the law officers, surely it is appropriate that it should be his or her responsibility to publish the fact that a reference has been made; for example, by putting it on the departmental website. The amendment ensures that the Executive take responsibility for publishing references made by them, thus showing a respect for the doctrine of the separation of powers.

I notice that the Minister has put down Amendments 9 and 10, which may achieve very much the same objective. If I am correct in that assumption, and they fulfil the same purpose but rather better—or at least are better expressed—I will not insist on these amendments and will withdraw them. In any case, I very much look forward to hearing what the Minister has to say.

My Lords, this group includes a notice in my name and that of my noble friend Lord Browne about Clause 7 standing part of the Bill. I will start with that and deal with the other amendments in due course.

Clause 7 introduces a new mechanism of a limited reference of a Bill to the Supreme Court to determine whether certain provisions of the Bill are within the competence of the Scottish Parliament. At present, once a Bill has passed through all its stages in the Scottish Parliament, it is for the Presiding Officer to present the Bill to Her Majesty for Royal Assent. However, before the submission for Royal Assent, there is a 28-day period during which the law officers—the Advocate-General, the Lord Advocate and the Attorney-General—can consider the Bill and if so advised refer it under Section 33 of the Scotland Act to the Supreme Court on a question as to whether any of its provisions is within the competence of the Scottish Parliament. Under Section 33, the whole Bill is referred and there is no mechanism to refer only certain parts of the Bill. Even if only one part is thought to be outwith the competence, none of it can be commenced until that issue is disposed of.

That explanation of the effect of a reference under Section 33 perhaps sets out the argument for the Government’s proposals in Clause 7. However, there are serious concerns as to how this will work in practice. I hope that this debate will draw out some of the rationale behind their proposals. To date, there has been no reference under Section 33 to the Supreme Court of a Scottish parliamentary Bill.

It might help if I briefly set out the internal procedures put in place during my time as Lord Advocate to ensure that Scottish Bills were within the competence of the Parliament. A Bill introduced into the Scottish Parliament by a Scottish Minister must be accompanied by a statement under Section 31 of the Scotland Act that in his or her opinion the Bill is within the legislative competence of the Parliament. Members of this House will be familiar with that kind of statement because all Bills presented here are accompanied by a statement made under Section 19(1)(a) of the Human Rights Act. The Scotland Bill is no exception to that. Therefore, there is a certificate, as it were, on all Scottish Bills which are put into the Scottish Parliament.

Certainly, in my time as Lord Advocate, no statement would be given by a Minister without their having sought the advice of the law officers that it could be made. I cannot speak for present procedures and it is possible that they have changed, although I have no reason to think that they have. Nevertheless, there are in place substantial internal procedures to ensure that Bills are within competence. In reaching a view on the competence of a Bill, there were a number of procedures. Those who were Ministers at the time will recall the passporting arrangements whereby there was a process with the Minister for parliamentary business and the Lord Advocate to have what in the UK Government would be a legislation committee—certainly, when I was Solicitor-General there was a legislation committee—which considered all the issues that were thrown up by the Bill, including legislative competence.

In addition, officials from the law officers’ departments were in constant touch with each other. We would talk to officials within the Advocate-General’s office and, for that matter, the Attorney’s office. Officials in the Scottish Government Legal Directorate would also engage with relevant departmental officials—for example, in the Home Office—to ensure that issues were identified at an early stage.

The role of the Presiding Officer is very important. The noble Lord, Lord Steel of Aikwood, will have had first-hand knowledge of that. The Presiding Officer must decide whether a Bill presented to the Scottish Parliament is within the competence of the Parliament, although I think I am right in saying that the standing orders allow for that decision to be overridden by the Parliament, but nevertheless it is an important element. Again, contacts were made between the office of the Presiding Officer and the law officers to ensure, as far as possible, that any Bill presented was within competence.

On amendments to Bills as they proceed through Parliament, it is true that not all amendments were referred to the law officers, but those that might cause an issue again were referred. I can say that on more than one occasion I did make it known both within the Executive, as well as on occasion to the individual Member who had proposed the amendment, that if it found its way into the Bill, the question of legislative competence would arise and that I or another law officer might have to refer the issue of competence to what was then the Judicial Committee of the Privy Council and is now the Supreme Court. So my experience is that a number of mechanisms are available for the detailed consideration of a Scottish Bill at all stages of its passage through the Scottish Parliament, and that issues of competence should be dealt with in that process. Even so, the Bill would be given another look once it had gone through all its processes. We usually took 28 days to do that, although there were occasions when there was an emergency and the law officers dispensed with the period of 28 days.

What this clause now proposes is that there will be a mechanism for referring part of a Bill to the Supreme Court for scrutiny. As I understand it, what will happen is that the Bill could still be given Royal Assent despite the limited reference while the issue is being considered by the Supreme Court. There is a mechanism for the remaining unaffected parts of the Bill to be brought into effect. However—I am looking for some guidance from the noble and learned Lord on this—as I also understand it, the Supreme Court would have a significant role in determining or making provision for how it would come into effect. I shall come back to that in a moment.

The Scottish Government have said that they are not in favour of this. An interesting point is the question of whether it is desirable to ask Her Majesty for Royal Assent to a Bill with disputed provisions in it. There may well be a point to be made about that, although perhaps not to be pressed too far. Nevertheless, there is also the question of what signal that would give the general public. Legislation on the statute book may not be in force but usually there is no question mark as to its validity. Moreover, the provision that:

“The Queen’s Printer for Scotland may publish notice of the reference and of the effect”,

may not be sufficient.

Clause 7 was not one of the recommendations of the Calman commission. I think it arose as a result of the commission’s general recommendation that:

“There should be a review of all other provisions in the Act that constrain the Parliament in terms of its procedures or working arrangements to ensure they are proportionate, appropriate and effective”.

I do not criticise the Scotland Office for having embarked on that, but the Government have identified through the review a number of areas, including this one, where they could make further provision.

In its evidence to the Scottish Parliament Bill committee, the Law Society of Scotland welcomed Clause 7 as “potentially viable” and made reference to concerns that the existing Section 33 power to refer legislation was not being used because it was considered too blunt an instrument, and that the effect of “freezing” an entire Bill was too much of a disincentive to a law officer making such a reference. It is unfortunate that this evidence was perhaps not probed slightly further. As Lord Advocate, I took the view that reference of a Bill under Section 33 to the Supreme Court was a quasi-judicial function. If I reached the conclusion that a provision of the Bill was outwith the competence of the Parliament, I would have felt obliged to refer the Bill to the court, notwithstanding the effect on the other provisions. I know that some lawyers, judges and academics have lamented the fact that there have been no references, because they believe that references would have helped clarify some of the issues around the reserved devolved areas. However, I never thought that it was my role to refer Bills for academic purposes and to allow lawyers to argue obtuse points of law in the Supreme Court. It is there for a particular purpose to allow policing of the provision.

In his evidence to the Scottish Parliament Bill committee, Richard Keen QC, the dean of the Faculty of Advocates, expressed concern that the ability to bring into force certain provisions of a Bill while others remained suspended might be contrary to the will of the Parliament, which may have passed a Bill due to checks and balances between parts of it; that is, Parliament would not have legislated in respect of one part of the Bill without the benefit of the check or balance provided by another. He went on to suggest that a way of resolving it would be to allow the order bringing in the non-referred part to be subject to the affirmative procedure, so that Parliament had an opportunity to consider whether it should be brought into force without the other bits. However, his evidence to the Scottish Parliament Bill Committee highlights a concern that is a theme also in the committee’s report; that is, that you in that way affect the coherence of a Bill.

The Scottish Government have questioned the workability of the provisions given that a large part of the Bill in question could be rendered incoherent by the suspension of individual groups of clauses. They also raised serious concerns over what they saw as a significant departure from democratic practice in giving the Supreme Court powers to determine the commencement of provisions passed by the Scottish Parliament, powers which were usually the monopoly of Ministers. The Bill Committee, in a majority report, recommended that the clause be removed from the Bill altogether.

I shall come back to the issue of principle in a moment, but perhaps I may turn to the detail of the amendments, which in a way highlights some of the particular issues. The Government’s amendments expand further the discretion that the Supreme Court would have in relation to the orders that can be made by Scottish Ministers. Once there has been a partial reference to the Supreme Court, and if it decides that any of the provisions are within the legislative competence of the Parliament, the Scottish Ministers can make an order. However, and this is the important point, the court may order that any provision is not to come into force until such time as the court decides, prohibit Scottish Ministers from making an order until the court appoints a time, and require persons as the court considers appropriate—so that is anyone—to take such steps as the court considers appropriate to bring the court’s judgment to the attention of persons affected by it. So the court is given a significant role in areas which are usually the preserve of Ministers; they are, effectively, executive functions. As I understand the amendments—no doubt the noble and learned Lord will explain them in greater detail—the court can also now provide that the time limits within the Interpretation and Legislative Reform (Scotland) Act in relation to orders may be overridden at its discretion.

In summary, there are serious questions as to whether this provision is necessary. The only real evidence is a concern from the Law Society—which is not backed up by any issue in relation to any Act—that references may not have been made to the Supreme Court because all the provisions would have to go there. Of course one understands that, if it is only a small point in a Bill, putting it all there may be seen as a bit of a blunderbuss. Nevertheless, given the concerns of the Scottish Parliament and the lack of evidence of a problem, does the noble and learned Lord consider that this should proceed into the Bill?

On the amendments tabled by the noble Lord, Lord Selkirk, clearly it is right that the person who makes the reference should be responsible for the publicity. Whether that is achieved through amendments brought forward by the noble Lord or by the Government at some stage in the future, I would certainly support them if this clause stood part of the Bill.

My Lords, it has been amply demonstrated by the remarks of the noble and learned Lord, Lord Boyd, that, as things currently stand, whole Bills can be delayed—possibly for months—should only a single provision be referred to the Supreme Court to determine whether it was within legislative competence. Section 33 of the Scotland Act 1998 contains a power to allow the law officers to refer Bills passed by the Scottish Parliament to the Supreme Court to determine whether they are within legislative competence prior to Royal Assent to the legislation.

The Scotland Bill provides the Government with an opportunity to re-examine this power. Indeed, as the noble and learned Lord indicated, the Calman recommendations encouraged a general sweep-up, and so within the Scotland Office and the Office of the Advocate-General we looked at all the different matters that had arisen and at where there were opportunities to amend, and some of these are reflected in other parts of the Bill.

It is very helpful that the Committee has been informed by the noble and learned Lord, from his many distinguished years of experience as Lord Advocate, as to how the process works. I should put on record from the UK Government’s side that officials in my department talk day in and day out to officials in the Scottish Government’s legal department on proposed Bills and orders to ensure that they come within competence. They discuss particular issues, and sometimes, when it is found not possible to get a solution under the legislation to be passed by the Scottish Parliament, orders under Section 104 of the Scotland Act can be brought forward to give effect to certain provisions. One sometimes sees headlines about the more controversial issues. We should not lose sight of the regular and valuable work done by officials in respective Governments to try and resolve many of these issues.

Likewise, officials within my department monitor Bills as they go through the Scottish Parliament. In a similar way to when the noble and learned Lord was Lord Advocate and during the 28-day period, these matters were looked at in my own department and ultimately referred to me to decide whether to refer them to the Supreme Court under Section 33. I share this thought with the noble and learned Lord. I recall from being a Minister when he was Lord Advocate the thoroughness with which that was done. Yet shortly after I took up office as Advocate-General, a case came before the High Court of Justiciary involving the competence of an order of lifelong restriction when someone had been convicted of an offence solely under the Firearms Act. That is of course a reserved matter. The question was whether the order was competent. The general view was that it was not, and ultimately the Crown did not defend the appeal. One of my officials said, “Who was the Minister who signed the original Bill as being competent?”. I had to hold my hand up, but I will not say who the law officer was who gave me that advice. It is fair to say that the other parts of the Bill stand with regard to the order of lifelong restriction and to offences that were either common law or related to devolved matters. That underlines the fact that a considerable amount of effort and work go into this.

With this clause, we sought to prevent unnecessary delays to Bills the majority of provisions of which are considered to be within the competence of the Scottish Parliament. In these circumstances, 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.

As the noble and learned Lord indicated, this power has not been used to date. As I have indicated, that is testament to the engagement between the UK and Scottish Governments, both under the current Administrations and previous ones. We do not really need to be reminded of how much both Parliaments enjoy, particularly in the field of criminal justice, so-called Christmas tree Bills to which bits are added here, there and everywhere. No doubt there is a need to address some recent development, or some official remembers a particular problem that needs sorting out. It would be regrettable if a Bill whose provisions for the most part were well within competence had one particular clause thought to be outwith competence and that had to be referred to the Supreme Court for a determination that held up the whole Bill. We wish to address that issue.

The limited procedure that we propose seeks to do that. I will deal with some of the amendments before addressing some of the points raised by the noble and learned Lord.

Before moving on, might the noble and learned Lord at this stage or later in his remarks take the opportunity to refer to an issue relating to the SNP Government’s proposed referendum Bill, on which he will be aware of very clear legal advice to the UK Government? Given the current procedures and how they might be affected by the proposals in this Bill, what is his understanding of the position within the Scottish Parliament on involving the law officers in Scotland if the referendum Bill moved forward?

If law officers were to advise the Presiding Officer that the Bill, or any other piece of legislation—the noble Lord, Lord Steel, will have much experience in this regard—was not legislatively competent, would that advice become apparent at any stage? Need that advice become public in any way? This is a matter of huge interest at the moment in Scotland.

To take the first part of the question, about the law officers, it is part of the Ministerial Code. We have tried to be very careful with regard to the referendum matter, although we may not have managed it all the time, to say, “This is the view of the United Kingdom Government”, because the Ministerial Code says that it may not be disclosed whether or not law officers have been asked for advice, let alone what the advice may be. The Ministerial Code is written in almost, but not quite, identical terms for the Scottish Government, and I would therefore certainly not ask the Scottish Government to produce their legal advice. If they refused to produce it or even to disclose whether they had sought it, that would be totally consistent with the Ministerial Code. However, it is perfectly legitimate to challenge them, if they assert something, about the basis on which they assert it, without asking them if there has been legal advice.

I always wonder what is meant by legal advice—legal opinion from a counsel, or whatever. Let us take an example. Let us say that the Lord Advocate went to Glasgow University and gave a learned lecture about the law on the legality of a referendum. Is that legal advice?

A public lecture is clearly not the same as advice that counsel would give to his or her client. This is probably not the place to debate the pros and cons of the Ministerial Code on legal advice, but legal advice is an opinion of the law officers given on a particular issue to a client department.

Is it not reasonable to assume that if a law officer states a legal opinion in the course of a lecture at Glasgow University, that might just be the same as the legal advice that he gives a Minister in a Government?

I express the view of the United Kingdom Government; I shall leave it at that. There is good reason why the convention is there, and it has been quite rigidly adhered to by law officers of all Administrations, in Scotland and the United Kingdom generally.

The noble Lord, Lord Stephen, also asked about the legal advice given to a Presiding Officer. The Ministerial Code arrangements for that are clearly not the same. Off the top of my head, I could not say whether that legal advice would be made available or not, or what the response would be if someone wanted to FoI it. It might well be that it is advice given by a lawyer and that there are categories of exemptions for legal advice. It might be a matter that would end up in the courts—I am not going to express a view on it.

My point is that when my noble and learned friend and I were in government, I recall that we went to quite extreme lengths to make sure that a piece of legislation was within legislative competence. The noble and learned Lord, Lord Boyd, has already referred to those matters. Part of the hard work that was done was to ensure that a piece of legislation would get the approval of the Presiding Officer. My understanding was always that if there was a conflict with the Presiding Officer, we would work on the legislation and make sure that it was within legal competence, as defined by the Presiding Officer. From what has been said this afternoon, a Government can, as I understand it, in effect defy the ruling of the Presiding Officer and push forward with the legislation, and no one in the Scottish Parliament—indeed, no one in Scotland—would be aware that the Presiding Officer had been overridden. That is my understanding of what the noble and learned Lord, Lord Boyd, and my noble and learned friend indicated. I suppose the question is: in what way would it be known that, for example, the referendum Bill had been laid before the Scottish Parliament even though the Presiding Officer had not approved it as being within legislative competence?

Perhaps I can clarify for my noble friend that Section 31 of the Scotland Act 1998 is relevant in this regard. It states:

“A member of the Scottish Executive in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament”.

Subsection (2) says:

“The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view”—

or in the case now, in her view—

“the provisions of the Bill would be within the legislative competence of the Parliament and state his decision”,

so the Presiding Officer has to state their decision as to whether it is within competence.

Let us take this away from the question of the referendum Bill, because our ambition here is not to get into that position; it is to reach an agreement, preferably on a Section 30 order. However, in general, the Presiding Officer has to decide whether the provisions of the Bill would, in their view, be within the legislative competence of the Parliament, and has to make that decision public. It is still the case that the Parliament could proceed to debate and process the Bill notwithstanding that, but there are obviously political ramifications. I could imagine some pretty lively debates if that was to be the case.

Could I clarify something which I think I asked? I am not entirely sure that I have got it over. On the provisions on the statement in Section 31, I said that in my time as Lord Advocate the law officer had to give their approval to that. That is a matter of public record and has been said many times before. I do not know whether that has changed in any way and I cannot recall whether it was part of the Ministerial Code that the Minister could not make that statement without the law officer's approval. If it was part of the Ministerial Code, I cannot think that it would be departed from. If it was simply an internal arrangement, it could of course have been departed from and one could speculate as to what procedures would now be in place.

The noble and learned Lord is right. We cannot speculate on what happens in an Administration of whom we are not members, but I can confirm what my noble friend and the noble and learned Lord said about the Administration of whom the three of us were members. The procedures and proceedings in these matters were as they have described.

To return to Clause 7, the limited reference procedure that we are seeking would therefore allow the law officers to refer to the Supreme Court only the provisions with which they have competency concerns, while, as I said, allowing the rest to go forward to Royal Assent. We believe that this is an appropriate and sensible method of helping to ensure that the work of the Scottish Parliament runs as smoothly as possible.

On the amendments tabled by my noble friend Lord Selkirk to Clause 7, through our engagement with the Law Society of Scotland the Government have, as my noble friend indicated, tabled amendments that reflect the intention behind his amendments. I wish to thank my noble friend for looking at this clause closely and for tabling his amendments. The government amendments have the same effect; I am advised that parliamentary counsel think that they have a more appropriate form of wording, but the effect is exactly the same. We therefore very much support the amendments that he has tabled, and I hope he will withdraw his amendment in respect of the other amendments that have been tabled.

I am grateful to the Minister. He will understand why I seek to intervene at this stage. I think it would be appropriate to point out that in the House of Commons Tom Greatrex moved a very similar amendment that was rejected, or at least not supported, by the Government at that time. The gratitude of the House to those who have created this resolution to the problem needs to be shared by him as well.

Indeed, what we have here is a better outcome than what was there before. We reflected on what had been said, the representations that we had received and the amendments that had been tabled, and came to the conclusion that this was the best way forward on this point.

I was not quite sure if the Minister was now coming to an end. I wanted to press him on one point. Whatever view he may take of the utility of the measure that he is putting forward, what weight does he put on the view of the Scottish Parliament—whose legislation this is, after all—that it does not want this? Does he think that it is right to press it in the face of that opposition? Or does he think that, because he as Advocate-General and his successors in that office will have to operate this, this is something that the UK Government want, despite what the devolved Administration think?

I also need to address some of the points regarding the amendments in my own name. I indicated that this was intended to help give effect to Scottish Parliament measures where perhaps only one small part of a Bill was in contention, rather than hold them up and frustrate them. If that were to happen and a whole Bill was referred because there was one clause in it over which there was some doubt and some cause for a Supreme Court determination, I rather think the Scottish Parliament might have a view to express at the point. The Bill being held up might contain other measures that it was agreed on all sides were very valuable; indeed, the measure under reference might be one where there was agreement about the policy intent but some doubt about whether it was within competency.

The six amendments that the Government have put forward are intended to achieve a number of important changes as well as technical improvements. As I have set out, and my noble friend has made this point, we think that the law officer who is making the limited reference should be responsible for publishing notice of it, rather than the Presiding Officer.

Amendment 12 implements recommendations made by the Subordinate Legislation Committee of the Scottish Parliament. We are taking on board what it said in its report on the delegated powers in the Bill in its 10th report of 2011, Session 3, where it stated that it,

“could envisage situations where the delay in commencement of the specified provisions would possibly require further provision to be made to enable the Act to function as the Parliament intended”.

The new power in subsection (9) is added in response to those comments to give the Scottish Ministers the power to make appropriate consequential provision in that scenario.

Amendment 12 deals with a point that the noble and learned Lord picked up: it modifies Section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 in its application to commencement orders made by the Scottish Ministers under new Section 33A(6). The effect is that those orders, which are to be subject to negative procedure in the Scottish Parliament, must be laid for a minimum period of 40 days rather than the standard 28-day period before they can come into force.

It may be helpful if I also write to noble Lords about this; I spent many sessions trying to get my head around a lot of its implications. The measure is designed to eliminate the risk that the Scottish Parliament passes a negative resolution after provisions in a commencement order made under Section 33A(6) have come into force. In this scenario the resolution would have no effect, as the provisions commenced would by that time already have the force of law. By increasing the laying period to 40 days, if the Parliament passes a negative resolution within that period then, in terms of Section 28 of the 2010 Act as modified, the instrument is not to come into force after that resolution.

Amendment 12 also allows the Supreme Court to provide that an order under new Section 33A(6) may be laid before the Scottish Parliament less than 40 days before it comes into force, in acknowledgement that there may be circumstances where it is desirable to bring provisions of an ASP that were subject to a limited reference into force more urgently.

Amendment 13 amends Section 113 of the 1998 Act so that the useful supplementary order-making powers contained at subsections (2) to (6) and (11) of that section also apply to the powers of Scottish Ministers to make orders under Section 33A(6), (9) and (10). For example, that would allow a consequential order under new section 33A(10) also to make supplementary or incidental provision under the power at Section 113(4)(a).

Amendment 14 is a technical amendment, which makes consequential orders made by Scottish Ministers under new Section 33A(9) and (10) subject to negative procedure in the Scottish Parliament—that is, a type J procedure if one looks at Schedule 7 to the 1998 Act.

Amendment 15 is another technical amendment related to parliamentary procedure, which has the effect that where orders made by Scottish Ministers under new Section 33A(6), (9) or (10) add to, replace or omit any part of the text of an Act, they will be subject to affirmative procedure in the Scottish Parliament, rather than the negative procedure. Again, this amendment is tabled in response to a recommendation made by the Subordinate Legislation Committee of the Scottish Parliament.

The noble and learned Lord asked some other questions and referred to the evidence given by the dean of the faculty, Richard Keen QC. He suggested that the clause should be amended so that the non-referred part needs further approval from the Scottish Parliament before commencement. We considered this but believe that to do so would introduce a further layer of complexity to an issue that would, anyway, be dealt with in very practical terms. Where the provisions of an Act of the Scottish Parliament are to be brought into force by Scottish Ministers by commencement order, they will clearly consider the intentions of Parliament in deciding whether it is appropriate to commence non-affected provisions while the reference is still ongoing.

If a Bill contains provisions that are a clear set of checks and balances—a point made by the noble and learned Lord—the law officer making the reference can specify all those related provisions as being affected by the reference, and none will come into force until the Supreme Court has reached its decision. A limited reference will be made in relation to those provisions or parts of an ASP that are easily separable and unrelated to the rest of the ASP. However, if there are concerns over a short or single-purpose Bill, in which everything is interrelated, it would clearly be more appropriate to refer the whole Bill than to have a limited reference.

There also appears to be a contradiction between what was recommended by the previous Scotland Bill Committee and the Subordinate Legislation Committee; they did not sit well together. It appeared illogical that the previous Scotland Bill Committee should recommend that unaffected provisions of the Bill be commenced by an order subject to affirmative procedure, while at the same time the Subordinate Legislation Committee recommended that affected provisions should be commenced following a favourable Supreme Court decision by an order subject to the negative procedure. It begged the question of why a commencement order for those parts unaffected by a reference should be subject to a higher standard of scrutiny than those that had been referred to the Supreme Court.

As I said, I accept that this matter is complex. Perhaps I might write to the noble and learned Lord to set it out in more detail. I assure him that it has been gone into in considerable detail. He also asked about giving powers to the Supreme Court with regard to timing. The consideration there is that very often these might involve the rights of third parties or people who would be affected by the legislation. If legislation is to have an effect on people, they may not know the date on which a Supreme Court judgment will be made, so it is only fair that they should be given some notice. This at least allows that flexibility. As the noble and learned Lord will no doubt readily recognise, these matters would be the subject of representations made to the Supreme Court when parties were making their submissions.

I hope the noble and learned Lord will understand the purpose of the amendment, which is intended not to frustrate but rather to facilitate a Bill that may have just one or two clauses that cause doubt. It would allow the rest of it then to proceed. Effort has been made to include the right checks and balances so that it can be done with the minimum of complication. Perhaps that does not flow from what has just been said but it is certainly the intent.

I thank my noble friend Lord Selkirk for his amendment, the spirit of which—indeed, almost the text of which—has been picked up. In the light of the government amendments, I hope that he will withdraw his amendment.

I thank the noble and learned Lord for his explanation and his offer of a letter, which will help. We have had a long debate on this but some important issues and points of principle have been raised.

I do not know whether I am interrupting at the wrong point but, after listening to the past hour of debate, I want to add that even those of us who are enthusiastic about devolution have to admit that it has created a field day for lawyers. We have lawyers galore all over the place. I was most grateful to the noble and learned Lord, Lord Boyd, for describing very accurately at the beginning of his speech the triple-lock mechanisms that exist, first, with the Executive’s legal advice, then with the Presiding Officer’s legal advice, and finally with the Advocate-General’s legal advice, to ensure that we do not get into difficulties with one Parliament attempting to legislate where it has no authority to do so.

I seem to recall that in the very early days of the new Parliament—my noble and learned friend and the noble and learned Lord, Lord Boyd, will correct me if I have this wrong—when my noble and learned friend was Minister of Justice and the noble and learned Lord was the Solicitor-General, we had real difficulty in my department because the law department was not fully staffed. Both noble and learned Lords will remember that we had a backlog of legislation from the days when my noble friend Lord Forsyth rightly said that he was effectively in opposition rather than in government, and we had all the reports of the Scottish Law Commission waiting to be put into effect. We had a flood of very early legislation, none of which was particularly controversial but all of which had to be gone through. I remember that the staff in my office were almost in a state of breakdown because they did not have the capacity to give the necessary legal advice, although it was eventually given.

My noble friend Lord Stephen asked whether the legal advice would be made public. The answer is no, not normally anyway. After all, legal advice is advice; the decision rests with Ministers and with the Presiding Officer. What would happen if there were an FOI request, I have no idea. It never happened in my time so I do not know the answer to that. However, it is important that everybody knows that these locks exist even though, as I say, they provide endless employment for lawyers on a grand scale.

The noble and learned Lord, Lord Boyd, mentioned emergency legislation. I hope noble Lords will forgive me if I mention a final anecdote, but I recall the occasion when we had to rush through a piece of emergency legislation following a decision of the court over the release of somebody from Carstairs Hospital. That occurred one summer. I remember it clearly. Her Majesty was at Balmoral. I was told that the Advocate-General could not possibly take the 28 days that he was normally allowed and that the measure would be rushed through. I was asked where I was going to be located in order to receive the Advocate-General’s advice, sign it off and send a letter to Her Majesty asking her to give Royal Assent. I was at home. I think that it must have been a Saturday as I was having lunch, untypically, with two hereditary Conservative Members of this House. That was not my normal custom but just happened to be the case on that occasion. A courier arrived on a motor bike from Edinburgh. He saw me through the kitchen window and so knocked on that window rather than going to the door. I opened the window, received the document, undid all the pink ribbon and the vellum, looked at the Advocate-General’s response and signed the letter to Her Majesty asking her whether she would be kind enough to give Royal Assent to this very important emergency legislation. I gave the letter back to the man on the motor bike and asked him, “Are you taking this to Balmoral now?”. He replied, “Yes”. I said, “Let me give you a piece of advice. When you get there, don’t knock on her kitchen window”.

I thank my noble and learned friend very much indeed for accepting the principle of the amendment. I hope I may say, by way of a one-sentence reply to the noble Lord, Lord Steel, that he reminds me of the famous parliamentary statement that lawyers should be elected only with so much circumspection, and therefore it will not happen very often.

Amendment 8 withdrawn.

Amendments 9 and 10

Moved by

9: Clause 7, page 6, line 13, leave out “Presiding Officer shall publish notice of the reference” and insert “person who made the reference shall publish notice of it”

10: Clause 7, page 6, line 16, leave out “the Presiding Officer” and insert “that person”

Amendments 9 and 10 agreed.

Amendment 11 not moved.

Amendments 12 to 15

Moved by

12: Clause 7, page 6, line 36, at end insert—

“(d) provide that an order under subsection (6) may be laid before the Scottish Parliament less than 40 days before it comes into force, despite anything in section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10), as modified by subsection (11).(9) The Scottish Ministers may by order make such provision as they consider necessary or expedient (including provision amending the Act) in consequence of any delay by virtue of subsection (2) in the coming into force of any provision of the Act.

(10) If the Court decides that any provision of the Act is outside the legislative competence of the Parliament, the Scottish Ministers may by order make such provision as they consider necessary in consequence of that decision in order to give full effect to any provisions of the Act which are within that competence.

(11) In its application to an order under subsection (6), section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 (the negative procedure) has effect with the following modifications—

(a) in subsections (2) and (8), for “28 days” substitute “40 days”;(b) in subsection (4), omit “so far as the instrument is not in force on the date of the resolution” and paragraph (b);(c) omit subsection (7)(a).””

13: Clause 7, page 6, line 42, at end insert—

“( ) In section 113 (subordinate legislation: scope of powers), after subsection (1A) (inserted by section 3) insert—

“(1B) Subsections (2) to (6) and (11) apply also to the power of the Scottish Ministers to make an order under section 33A(6), (9) or (10).””

14: Clause 7, page 7, line 2, after ““Section 33A(6)” insert “, (9) or (10)”

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

“( ) In paragraph 3 of that Schedule (special cases)—

(a) in sub-paragraph (1)(a), after “type F, G, H, I” insert “, J”;(b) after sub-paragraph (2)(d) insert—“(da) instead of the type J procedure, the type L procedure shall apply,”.”

Amendments 12 to 15 agreed.

Clause 7 agreed.

Clause 8 agreed.

Clause 9 : Constituencies, regions and regional members

Amendment 16 not moved.

Clause 9 agreed.

Amendment 17

Moved by

17: After Clause 9, insert the following new Clause—

“Review of electoral system for the Scottish Parliament

(1) The Secretary of State must make arrangements—

(a) for a committee to carry out a review of the electoral system used for elections to the Scottish Parliament and to make recommendations about that, and(b) for the publication of the committee’s findings and recommendations.(2) Arrangements for the establishment of the committee under subsection (1) are to be made no later than 1 May 2012, and the committee is to report no later than 31 December 2012.”

My Lords, I must say that I found the previous debate fascinating. I do not think that I understood more than half a dozen words of it but I am sure that every lawyer present—and there are quite a few of those—understood it all. It was enlivened only at the end by the anecdote of the noble Lord, Lord Steel.

I am very happy to do as the noble Duke, the Duke of Montrose, instructs me. After all, one of his ancestors was beaten by Cromwell. Is that right?

My history is wrong; I shall have to check with the noble Duke afterwards.

The amendment would set up a general review of the electoral system for the Scottish Parliament, and it is about time that we had such a review. As was said in one of our earlier debates, the additional member system was very new to Scotland—and to the United Kingdom. It is similar to the German system but was very new to us. It was devised through multiparty discussions—not all parties were involved—as to what might be a suitable proportional system to ensure that no party would have an overall majority, an issue to which we will come back; and to ensure that all parties were properly represented in the Scottish Parliament.

However, because the system was new, my recollection is that it was recommended that there should be a review after two Sessions of the Scottish Parliament. We are now into the fifth Session and there has been no review. It is about time that we had one and, as I understand it, it is our responsibility to suggest, if not actually to set up, a review. It was recommended by the Arbuthnott committee, and I shall come back to that in a moment. If I may mention him, even one of the architects of the additional member system or at least one of the people involved in the discussions that led up to it, the noble Lord, Lord Steel—I blame other people for the system—has been reported as saying he believes that it is no longer fit for purpose. I have spoken to a number of people who have come to the same conclusion.

Let me deal with one or two of the problems. First, we have two types of MSPs—list Members and constituency Members. When the system was set up, the division between them was much greater than now. There has been some attempt to bring them together and to reduce the differences. Nevertheless, it is clear that constituency Members have the primary constituency responsibility. Regional Members, who have responsibility for a whole region, in the past few Parliaments have been increasingly requested and required to take on responsibility for individual cases referred to them. What is of course happening is that members of the public go first to their constituency Member who takes the matter up with officials and resolves the problems, if possible. However, some problems do not have a resolution. Those of us who have been Members of Parliament will know that problems can be intractable. However, the individual constituent does not necessarily think that and then says he will go over the head of the constituency Member to the regional Member. Later on, if the regional Member cannot deal with the problem, it comes to the MP. No doubt, if a senate were to replace this place, and if the MP could not deal with the problem, the constituent would go to the senator. That is a debate for another day.

There is a division between the types of MSPs. They have different workloads; there is overlap, competition and confusion between them. We heard earlier that some regional MSPs target constituencies. They set up offices and work in constituencies with a view to fighting the sitting MSP at the next election. The system seems almost designed for them to do that. Having two types of Members creates a problem.

Secondly, there is confusion in voting. Members will understand that and will have seen it happening. When you explain to members of the public that they have two votes, they find it difficult to understand the purpose of those two votes. It is difficult to explain their purpose. We in the Labour Party—those in other parties do exactly the same—say, “First vote for the constituency member and then vote for the party”, but it is inevitable that someone will say, “Okay, I’ll give my first vote to this Labour constituency member, but I like the Greens”, or the Liberal Democrats, “as well, so I will give them my second preference”. Sometimes there is confusion that it is a preference vote, which of course it is not; it is a different voting system.

Arbuthnott stated in his report:

“The Commission found that there were problems with the public understanding of the electoral system”.

The report states that especially confusing was the regional vote, which the public believed was a second preference vote. Survey data indicated that a significant proportion of people did not understand how seats would be distributed within the Scottish Parliament.

I now want to tell you briefly about my experience. I was asked by the noble Lord, Lord McConnell, when he was First Minister, whether I would help to lead the Labour campaign in the Lothian region. I agreed to do that. He said: “George, let's put you on the list”. I put my name into the hat and we had a ballot among Labour members in Lothian and, lo and behold, I came top of the list, so I was number one, on the understanding that never before had any Labour member been elected for Lothian. I told my wife that there was no way I would be elected. I told the Chief Whip here, because I was a Member of this House, “Don't worry, I will be here every day because there is no way I will be elected”.

I campaigned for the constituency members of the marginal seats to ensure that I was not elected. Imagine that. You are a candidate and you campaign for the constituencies just to ensure that you do not get elected. I did all my campaign work in two marginal seats: Central Edinburgh and Linlithgow, which we held. Unfortunately, we lost two seats that we thought were safe. I thought, “That doesn’t matter, the Greens always get two in Edinburgh, there is still no way that I will be elected”. However, the Greens did not do so well in that election. I was at the count walking up and down. The husband of Sheila Gilmore, who is now Member of Parliament for East Edinburgh, Brian Gilmore, who is head of the statistics department at Edinburgh University, came up to me and said, “George you’re going to get elected”. I said, “No, no, I’ve told my wife. I’ve told the Chief Whip”. Brian is the best statistician I know. I phoned Liz and said “There is a chance that I may be elected”. She said, “What?” I said, “I’ll phone you back later”. An hour later, she had had the chance to adjust to all that, and I left Steve Bassam until the following week. I was elected because of the system. I had not campaigned for myself. I had spent not one penny on the election. I produced no election leaflets whatever. I held no meetings at all for that election. It was astonishing, but there I was, a Member of the Scottish Parliament.

I treat the noble Lord, Lord Steel, as a friend of mine; in fact, he was at the party as well. He will not be coming to my 80th, that is for sure—no, that is a very good point.

It illustrates the absurdity of it all. When I was a Member of Parliament for Carrick, Cumnock and Doon Valley, which we considered a relatively safe seat, I had meetings all over the place. I produced literature and spent almost the limit to make sure that I got elected. In 1997, I ended up with the largest majority in Scotland as a result. We worked hard to get elected. It seems absurd, having worked hard year in, year out to get elected as a Member of Parliament in that constituency from 1979 to 2005, I just floated in easily to the Scottish Parliament. It is a strange system.

Not having been invited to the birthday party, can I, perhaps unfairly, point out that the voting system was to be proportional, which was agreed through the constitutional convention? The Liberal Democrats, as always, proposed a fair and appropriate system—the single transferrable vote in multimember constituencies. My clear recollection is that the Labour Party, in conceding a proportional system of election, was prepared to agree to anything except the system that was being proposed by the Liberal Democrats. Therefore, it was the Labour Party that devised the system that we now have in the Scottish Parliament. I would welcome it if the noble Lord, Lord Foulkes, and other members of the Labour Party were now suggesting a fairer system of proportional representation. Perhaps the noble Lord will give his backing to the single transferrable vote.

I was commending the noble Lord, Lord Forsyth, and David Cameron earlier for not being party political in terms of support for the union and for not looking for party advantage. As the noble Lord, Lord Stephen, will find out, I am doing the same in relation to this. I will come to that in a moment.

We were told by the architects—it is coming back to me now. It was not the noble Lord, Lord Steel, who was guilty, but probably Henry McLeish who was the architect; he is the guilty person. If he is not, he is getting blamed for it now, but I am sure that he is.

Some of us on the convention argued for first past the post under any circumstances. The then leader, Donald Dewar, agreed as a compromise to try to accommodate the Liberal Democrats, and one or two others, that there would be a proportional system. Some of us would still have much preferred a first past the post system.

That anticipates another point. Whoever was the architect—I think that it was Henry McLeish and others of his ilk who said, “This system will never produce an overall majority for any party. Be reassured. Don’t you worry”. Look what we have—less than 45 per cent of the people who voted in that election voted for the SNP, yet it has a relatively substantial majority in the Scottish Parliament. It does not work. When I asked one of the other people, who I will not name, and who I have just remembered was also one of the architects, why this came about, he said, “Because the system is weighted in favour of the rural areas”. That was deliberate—not to ensure that nobody got an overall majority but that Labour did not get an overall majority. It was not done for party political advantage.

Like my noble friend Lord Maxton, I argued for first past the post. I am still arguing for it and will fight to keep it for the House of Commons. I know that some Members opposite will join in that fight. Let us keep it there; I wanted to have it for the Scottish Parliament, but we did not get that. I would like to have a review to go to first past the post but, to use a phrase that was used earlier in another context, the genie is out of the bottle, and I do not think that we can go back. I agree with the noble Lord, Lord Stephen, that if we are to have a proportional system and we have single transferable voting for local government, there is a logical case to have the same voting system for the Scottish Parliament and local government. It would simplify things. I am not advocating this but simply saying that there is a logical argument in favour of it that could be put to the commission that will be set up.

I would also argue that one dreadful thing that has happened is the way in which we now have completely different boundaries for Westminster, Holyrood and local government. It is confusing everyone. In Wales they hope that with the revision of Westminster boundaries they will get them to coincide again. I hope that something will be done in Scotland to get the boundaries to coincide again. Let us say that the commission was convinced by the arguments for the single transferable vote. We would then have a simplified electoral system, with two elected levels having the same system. If we could get the boundaries more contiguous, we would make things simpler for the electorate and do a great service.

I look to the Minister when I say that I hope that some consideration will be given to this. A lot of time has passed since the Scottish Parliament was set up. Many people have suggested a review. I had been led to believe in the corridors and the Lobbies that the Government were looking at this and moving in this direction. I hope that they will move relatively quickly, and I hope that the Minister will be as sympathetic as he was in his answers to my previous amendments. I beg to move.

My Lords, unlike the noble Lord, Lord Browne, I will show some gratitude to the noble Lord for his very good party on Saturday night by supporting the amendment that he moved. My serious point is that he was right to say that we were promised, at the time that the Scotland Act passed into law, that there would be a review of the election system after a couple of Parliaments. This has not happened and I hope very much that, whether or not we agree the amendment, there will be such a review.

I would support a review for four brief reasons. First, there is the question that we discussed, and that I will not repeat, about the clashes between regional Members and constituency Members. Despite what my noble and learned friend said earlier in debate, I know for sure that it has been a problem in some areas. The second reason is the one the noble Lord referred to just now. Since the Scotland Act came into being, we have changed the electoral system for local government. People are now familiar with STV, which they were not at that time when my noble friend and others were pressing for it to be adopted in the Scottish Constitutional Convention.

I come to my third reason. I used to be a very strong supporter of first past the post. Partly because I was the only Member of the House of Commons who represented three counties, I felt very strongly about the relationship between a Member and his constituency. However, the way the Boundary Commission has operated in Scotland—not just in creating differences between Scotland and Westminster but within Scotland itself—is extraordinary. Constituencies no longer represent communities but arithmetic. For example, a chunk of Midlothian was thrown into the Borders at the last election, despite the fact that a public inquiry had stated that it should not happen. The old first past the post basis under which one represented a community has gone, because of the obsession with representational arithmetic rather than communities.

The fourth and final reason why I support an inquiry is that we now have in Scotland no fewer than four election systems that we invite the electorate to indulge in. We have first past the post for Westminster, a party list system for the European elections, STV for local elections and a regional list system for the Scottish Parliament. I cannot think of any democracy in the world where there are four different systems for different elections.

Of course, if the Government that the noble Lord supports have their way, we may well have a fifth system for elections to this place.

The noble Lord must not tempt me to get on to that. Four is more than enough. That is in itself a very good reason why we should have a review of the whole electoral system. It should be objectively done. There is no party political gain to be had by anybody in this, but it is high time we had an independent look at how elections are run in Scotland.

My Lords, I can put on the record now that right from the start of the discussions about the Scottish Parliament, I was opposed to the voting system. It got to a stage where the minute I came into a room, eyes would glaze over. As a consequence, I lost the ability to make my arguments. To some extent, my opposition was based on recognition of the difficulty of having regional list Members and the problems that it would create for individual constituency Members where you had someone who could helicopter into your constituency and cherry pick the issues. It makes it very difficult even if it is a member of your own party who is the regional list Member. It makes it very difficult to run a consistent service as an elected representative. Time after time I was told that I was old-fashioned and that I was being tribal. My heart told me that I wanted first past the post, because that was the way that my party would win; but my head told me that for a new system of government, for devolution, we had to find some other way of doing things—but I was extremely unhappy with AMS. As the Minister knows, that is parallel to the system which operates in New Zealand, where there has just been a referendum and, ironically, they have voted to keep it.

Having said that, I agree with my noble friend about the hotchpotch of systems and the problems caused by non-contiguous constituency boundaries. In a couple of instances, I may have been responsible for that because of decisions that I took as Secretary of State. You do not always get the opportunity to take the decisions that you would want to take. However, I am opposed to the proposal that my noble friend has put forward—not because I am opposed to the idea of a review, but because I think that when you have been comprehensively beaten in an election, you do not turn around and say, “We’ve got to change this”. I accept that the Government of whom I was a member could have done something about a review, and the coalition could have done something about a review before the Scottish Parliament elections. Frankly, however, I think that we have missed the boat. It would be interpreted as the unionist parties saying, “We was robbed”. We have just been saying that we must be absolutely certain that the referendum is fair and transparent and that the decision will be accepted by the majority, which is very important. I think that we have missed the boat.

Would the noble Baroness be prepared to take a different view if the Scottish Government were in favour of a review of the voting system? My understanding is that the SNP Government would prefer a different form of voting system, perhaps even one in line with the system that the noble Lord, Lord Foulkes, might be persuaded to back, and similar to the proposals set out by my noble friend Lord Steel. If that were the case, would it not fundamentally change the argument that she has just made?

I thank the noble Lord for that intervention. It would change my position. I would snatch off their hand if they proposed a review of the voting system. I would be surprised if they wanted to do it now when the voting system has so decisively played in their favour and they have developed a sophisticated strategy of ensuring that regional list Members forensically target seats where there is a prospect of winning. My former seat of Airdrie and Shotts, which used to be one of the safest in Scotland, now has a SNP Member of Parliament because of that very forensic, very clever targeting of constituencies and issues.

It is with considerable regret that I say to my noble friend that I do not think that this is the time for this House or this Parliament to call for a review, because it would be misinterpreted. However, it is not often that I get a chance to say I told you so. There are one or two people, who will not be listening now, to whom I said that. It is a case of I told you so.

My Lords, I hope I can persuade the noble Baroness to be a bit braver. We should not be too concerned about how people present it. The noble Lord’s amendment is not actually imposing anything, it is just saying that a committee should be set up to look at these issues.

I am told that I am supposed to be terribly grateful, as a Conservative, for the system of election that was put in place for the Scottish Parliament, and that I am the fellow who lost every seat when we had 8.5 per cent of the vote. I noted at the last Scottish elections that the Liberals’ share of the vote was down to 5 per cent; I think on the list system it was about 7.8 per cent. We never reached that particular nadir. The relationship with the number of seats that people win in Scotland because there is a four-party system is odd, to say the least. The nationalists have now got 45 per cent of the vote because of the way the system operates, like an avalanche, once a particular shift occurs.

There are a number of faults with the system. I will not repeat the arguments. Of course, one is this problem of having people in your patch trying to do you down, using constituency issues for that purpose. When I was the Member of Parliament for Stirling, one-third of my constituency had never had anything other than a Tory for as long as people could remember; one-third had never had anything other than Labour; the other third could go either way. This is going back to ancient times, but in 1983, even though I was a Thatcherite Tory and many of my constituents were not particularly committed to that view, you were respected as the Member of Parliament, and you made sure that you treated everyone equally, regardless of how they voted, and did your best. You were first and foremost the representative of your constituency.

I have watched what is happening in my constituency now, where you get different parties playing politics and constituents going to one after the other, and people trying to get stories in newspapers and using public funds to promote themselves, and undermining that relationship between the Member of Parliament and his constituents, which is an absolutely vital part of our system and which has been further undermined by the scandals over expenses and other matters. The whole system of being a Member of Parliament works—not because you have any real power but because when you send a letter on the headed notepaper, whether it is the Scottish Parliament or the Westminster Parliament, people sit up and take notice. I regret to say that is happening less effectively because of the damage that is being done and the fact that you have people playing politics.

Goodness knows—I will be tempted—if we are going to have elected Members of this House on a 15-year term, and the average lifespan of a Member of Parliament at the other end of this building is about eight years, that means we will have elected Lords who will last twice as long as Members of Parliament, and who will then be in a bigger patch, using their position to kill off all their opponents. I cannot think of anything worse. So there is an issue here that the noble Lord is right to identify.

There is something else I would like to say, which is probably going to get me into trouble with my party and upset a number of my colleagues. In this system, the way the list operates means that all you have to do to get into the Scottish Parliament is to make sure that you are in the right position on your list, as the noble Lord has pointed out. In my party, that means that all you have to do is get the membership to vote for you. If you are the incumbent and have been around for a long time, it is easier to achieve that because they know the name. Built into the system is something that gives the incumbent an advantage. That can be a good or a bad thing but the worst feature of this is that because you rely on the membership voting to give you your place on the list, you have a vested interest in having a declining membership. All political parties have suffered a lower membership. When I was Member of Parliament for Stirling, I used to recruit members. We had 2,500 members. Now we have 300. I thought, “What is going on in Stirling?”. Then I discovered that in the whole of Scotland we had 10,000 members. Yet we have got about 18 MSPs. We have a system that creates a self-perpetuating hierarchy who have an interest in having less and less contact with their constituents. If ever a system needs to be looked at and reformed, this is it.

Perhaps I may say to the noble Lord that there is no perfect system. We use STV for local government, the Assembly and for Europe. While the same applies in terms of the selection of any candidate for any form of election having a small party that he or she can rely upon, the other ingredient that you have with STV is alphabetic. We have examples of people changing their names and using a hyphenated name—Aardvark-Bloggs or something like that—because they prefer to be at the higher end of the alphabet, and under STV they come first.

In my party, I have examples of councillors who have changed their names to double-barrelled names beginning with A. There is no absolute perfection in all this. People abuse any system and if the noble Lord wants to become Senator Aardvark-Forsyth, we look forward to that as well.

I will take that as a speech in favour of first past the post. I should declare an interest because the first election I won was for a Labour ward on Westminster City Council. Of the three candidates, I was the only Conservative who was elected and I am sure that it was because my name began with F. That is certainly a good point to make.

Of course, we know the system that was described in Scotland. In 2007, the name on the list was Alex Salmond for First Minister. Therefore, it was not the party but his name, which begins with an A. Let us remember that he won by 47 votes in one seat in Scotland, which gave him the largest single party in Scotland. Perhaps we already know the system.

I wish that I had been sharp enough to have worked that out in response to the noble Lord, Lord Empey. All parties look at this issue from the point of view of party advantage. If you are going to set up a commission to look at this, it has to be clear of the political parties but, ultimately, it has to be agreed among the political parties.

One of the most remarkable things that I have seen in politics was the Labour Party in control of the Scottish Parliament introducing the single transferable vote for local government. It destroyed the Labour Party’s hegemony in Scotland. It was an act of supreme self-sacrifice, which was clearly thought through in the interests of wider democracy—I am sorry but my tongue was stuck to my cheek. We have ended up with four systems, as the noble Lord said. I defy most candidates of all parties, if they knock on a door and ask, “Could you explain to me each of the electoral systems and how they work?”, to get an answer that has any degree of confidence or accuracy. The whole thing has become ridiculously overcomplicated.

The point about constituency boundaries goes to the heart of this idea of representation. The noble Lord, Lord Steel, says that we have lost all that. No, we have not. It is true that the reform of the House of Commons and the parliamentary constituencies Bill took not enough account of this very important reason. But it strikes me that we have 129 Members of the Scottish Parliament, which seems somewhat excessive. Looking at the numbers it would be possible to bring more logic, more coherence and more relevance to the people of Scotland. Moreover, if one is going to look at the electoral system, one ought also to look at the size of the Parliament and its relationship to Westminster and other bodies.

This is an excellent amendment which I do not suppose the noble Lord will press to a vote but I hope that, in responding, my noble and learned friend will consider how this can be dealt with, because there is no doubt that it is damaging to have all these systems operating in Scotland in a way that is not in the interests of the important relationship between elected representatives and their constituents.

My Lords, I have just a few remarks to make on my noble friend’s amendment. I remember the then leader of the Labour Party, Tony Blair, saying to the Parliamentary Labour Party just after the Scottish elections that he did not realise that he had been so generous to the Conservatives in Scotland. He had revived them as a result of that issue.

Two issues are raised in this amendment. One is the alienation of the political class from the community, and the other is the community dimension. When I was elected in 1987, we had a percentage turnout in my constituency around the mid-70s. By the end it was down to 61 per cent, while the turnout for the Scottish Parliament was about 50 per cent. That is a big issue for us as politicians. We are alienating ourselves from the people, and the result is that that feeds disillusionment. Things were bad enough with the expenses scandal, but if we go on like this we will feed that disillusionment.

I remember talking many years ago in the European Parliament to an Irish politician, a newly elected MEP, so I said rather naively, “You must be quite tired and looking for a bit of a break”. “No”, he replied, “I was next on the list and I have just come in”. It struck me at the time that the link between the representative and the people of the community was broken, and that is a bad thing for politics and a bad thing for communities. We have to look at the alienation that exists at the moment, along with a loss of trust in the system and politicians.

The community dimension is very important because people are proud of the Member of Parliament who represents them and their interests. As others have said, Members are also proud in taking the interests of their communities to Parliament. The latest Bill which the Government have brought forward is indeed representation by numbers. In the long run we will suffer as a result of that situation.

I understand that there is no perfect system, but we walk into things with our eyes open. For example, the latest Bill the Government have put before us for House of Lords reform presents the possibility of Members being here for 15 years. It is obvious that they will feel that they are superior to the Members of the House of Commons as a result of that. Let us take the Finance Bill. The House of Lords cannot touch it, but that must be the first casualty because we will have elected Members here who have to go back to their constituencies. All politics is about priorities—it is about what is spent on health, education and transport. Can anyone say in all honesty that the people who are representatives here will not look at a Finance Bill as a result? If we pass the Bill, that will hit us like a train. We have an opportunity to be sensible about these issues and tie everything up. While I go along with my noble friend, I do not think that this is the time to put this forward. There are big issues on the agenda and I am grateful to my noble friend Lord Foulkes for raising them in his amendment.

My Lords, I know my limitations and that I will be unable to match the gratitude of the noble Lord, Lord Steel of Aikwood, to my noble friend Lord Foulkes, but I will do my best. That is all I have to offer him. I thank him for bringing forward this amendment. I believe that he has made the case for a review of the electoral system used for elections to the Scottish Parliament. He made it by reminding us of the promise that the system would be kept under review; of the acceptance of the recommendations made in the Arbuthnott commission report in 2006; and, if I remember correctly, of the acceptance then that it would be appropriate to have a review of the electoral system for the Scottish Parliament following the May 2011 elections—which recommendation I recollect was accepted by Douglas Alexander, the then Secretary of State for Scotland. That acceptance may not have transferred to the new coalition Government and the present Secretary of State, but I suspect that if he reread Arbuthnott, he would come to the same conclusion in relation to that review as did Douglas Alexander.

For that reason, I accept that there is a case for a review. I was interested in the intervention made on my noble friend Lady Liddell by the noble Lord, Lord Stephen, who indicated that he had some reason to believe that the current leadership of the SNP in Scotland had welcomed the review and might be inclining towards the views of my noble friend Lord Foulkes about what system should replace the present one.

My noble friend expressed some surprise at that, but I am not surprised, because the SNP now has the constituencies. There is a tendency for a party’s view of the electoral system to reflect either its wish to hold on to the status quo or its desire to disturb it. That is exactly why my noble friend is right to suggest that the review needs to be carried out independently of politicians, and the noble Lord, Lord Forsyth, is right to support him.

Perhaps part of the problem with the present system was that it was a compromise agreement between political parties which had an objective to disturb the status quo. My own experience is that some of the concerns about the electoral system that is used for the Scottish Parliament are exaggerated, but I do not have comprehensive experience all over Scotland of how the system works. I know that people whose views I respect have concerns about it and they have been articulated here in our debate.

I suspect that the noble Lord, Lord Steel, is partly responsible for forcing upon the Electoral Commission a numerical priority. We have had two experiences of this in Scotland. One was in a review of boundaries for the Scottish Parliament elections, when my recollection was that the instruction that went out to the Scottish Boundary Commission was in its interpretation so restrictive that it took the basic building block and just applied it numerically from one starting point across Scotland. With one or two exceptions, none of its recommendations survived the appeal process or presentation to the sheriff principal because they were ridiculous in relation to communities. I remember the debates about the constituency boundaries and voting systems Bill, when my noble friends were queuing up to say that that is exactly what would happen if we forced that structure, or any part of it, on the Boundary Commission again through that legislation. So, in a sense, this legislative body has exacerbated the problem through that legislation.

I accused the noble Lord—I hope not too seriously—of being part-author of that problem. However, he may not have voted against the attempts that were made to ameliorate the effect or to stop it, but I have a recollection, certainly, of people from his Benches voting against the amendments that were tabled through the best endeavours of people on this side of the House who knew exactly how it would work and tried to prevent it happening. If it does happen, some people will have been the authors of their own misfortune by creating a separation between communities and constituencies.

We have yet to see how the review of constituency boundaries will work out but I predict confidently that when people realise how they will take effect in their communities, Members of Parliament of all parties will be screaming from the rooftops. Not only that, communities from all over the country will come to Members of Parliament and politicians and say, “What are you doing here? What have you done?”—and it will be interesting to see how many people stick by the arguments that they made during the passage of the Bill as a justification for doing this. However, that is perhaps another matter. I did not introduce the issue into the debate but I have taken advantage of the opportunity to make my point.

Having supported the general tenor of the debate—that the time has come for a review—I say to my noble friend that I do not think this is the vehicle for it. Earlier in the debate I understood the Minister to indicate, possibly in anticipation of this amendment, that the Government were minded to explore whether the time had come for a review; that they were going to do so in an appropriate way by consulting across parties; and that the voting system for the Scottish Parliament could be included if there was consensus and agreement for such a review.

That is, of course, the way in which we should proceed with all constitutional change; we should consult and seek consensus so that we can go forward. No political party owns the constitution and we all have a responsibility to preserve certain parts of it to hand on to future generations. It belongs to the people, not to us, and we should ensure that we do not seek party advantage out of a review of the constitution. If there is to be constitutional change in this area, that is the appropriate way to do it—not by, with all due respect to my noble friend, a provision in this Bill.

The structure that my noble friend has suggested has many of the right ingredients for a review. The timing that he proposes, however, would, if we pass the amendment, divert us from what should be the focus of our attention for that period of time and until the referendum in Scotland—that is, making the progressive, proper, forward-looking argument for keeping Scotland in the union; we should not use any of our resources for considering the system for electing Members to the Scottish Parliament. In my view—and I am afraid to say that this is where my gratitude to my noble friend runs out—this is the wrong vehicle. I prefer the Minister’s indication that it will be done in an appropriate way by a review instituted with some degree of consensus. The discussion needs to go beyond political parties into civic Scotland. It is the wrong time, but I am grateful to my noble friend for allowing this debate.

My Lords, the amendment moved by the noble Lord, Lord Foulkes, has generated a considerable amount of discussion on the merits or demerits, as perceived by noble Lords, of the present electoral system for the Scottish Parliament. I declare a non-interest: I was not at the noble Lord’s party, but I can assure him that that has no bearing whatever on the response I will give to his amendment.

He wishes to set up a committee to review the electoral system used to elect Members of the Scottish Parliament. It is tempting to go through the history of how we arrived at the electoral system we have. I shall resist that temptation, other than to say, as was indicated, that it was a compromise. It was obvious at the time and is the case. My noble friend Lord Steel said that there was a commitment to review the system after two elections. I do not remember such a commitment but, nevertheless, the Arbuthnott commission was established jointly, if my memory serves me correctly, by both the Scottish Government and the United Kingdom Government to look at the electoral system. It reported, recommending some revisions to the electoral system. I try to remind myself what they were. The Arbuthnott commission recommended that the mixed-member proportional system we have for elections to the Scottish Parliament should be revised to give voters more choice. It suggested that the closed list should be replaced by an open one, that the boundaries should be based on local authority areas and that a role should be defined for the regional MSP. Self-evidently, these recommendations were not taken forward or implemented.

The commission went on to say that,

“our revised electoral system, if implemented, should be reviewed following the experience of two elections. If further reform is judged necessary, consideration should be given at that time to introducing the single transferable vote for Scottish Parliament elections”.

As I have indicated, that revised system has not been implemented. The Calman commission perhaps read more into that and interpreted it as saying that in any event there would be a further review after two more elections—ie, after 2011. My colleagues who sat with me on the Calman commission will no doubt recall that we did not make any recommendations on the voting system as such because of the very recent Arbuthnott review, but also because there might have been a future review.

As I indicated in an earlier debate, specifically on another aspect of the electoral system and the regional list Member also standing in the constituency, the Government have stated their intention to consider what has been said by a review of the electoral system by both the Calman and Arbuthnott commissions. Indeed, in the Command Paper published alongside the Scotland Bill on St Andrew’s Day 2010, Ministers said that they recognised that the Calman commission,

“considered whether the electoral system for the Scottish Parliament should be reformed or devolved to the Scottish Parliament. Previously, the Arbuthnott Commission had reported in 2006 stating that there should be a review of the electoral system after the 2011 elections to the Scottish Parliament—the Government will consider this recommendation, taking into account the views of the new Scottish Parliament, following the May 2011 elections”.

Clearly, as indicated by the debate we have had this afternoon, there is support in a number of quarters for some form of review of the electoral system. However, the Government believe that they could take forward that review only with the full support of all parties in the Scottish Parliament, along with the benefit of the detailed consideration that this Government are committed to. I take the point made by the noble Baroness, Lady Liddell, that there is perhaps some nervousness about seeking to change the rules after they delivered a result that many of us did not like. That is a fair point. The noble Lord, Lord Browne, also made the important point that there are perhaps more important constitutional issues that we should focus on at this time, not least the fundamental question of Scotland’s place in our United Kingdom. Perhaps now is not the appropriate time to start a review of the electoral system. I have indicated that if there is that consensus to take it forward at some future time, we would be willing to consider it, but this is not the appropriate time to do so.

I think that we all share two views that were expressed earlier. First, I endorse what my noble friend Lord Forsyth said on the standing and importance of a Member of Parliament in his or her community. He said that those of us who have had the privilege to serve as Members of Parliament take very seriously that we represent the entire community and not just those who voted for us. That sense of representation and the privilege that follows those of us who have done that is important. That links into what the noble Lord, Lord McFall, said on the duty of all us to consider how as politicians—elected or not—and as a political system we can re-engage with the people who our laws affect. That will not be done just through a change to an electoral system. There are a whole host of things but it is something we would do well to remember.

For clarification, on the specific point raised by the noble Lord, Lord Foulkes, on Amendment 1, I repeat that we will see what consensus there is about looking at that. In the spirit of what I have said, I hope the noble Lord will withdraw his amendment.

My Lords, we have had a very lively and well informed debate, considering that we started over seven hours ago with the procedural amendment proposed by the noble Lord, Lord Forsyth. It has been a very useful debate.

My noble friend Lady Liddell—I call her Secretary of State emeritus for good reasons—alerted me to the fact that she was going to disagree with me. I did not realise that it would be such a gentle disagreement, because it was a very sensible contribution. She pointed out the genuine argument against my proposal, and I had taken account of it. It is a very genuine argument about timing that we need to be concerned about. There is never a good time for this, and we wish we had done it. My noble friend said that we had missed the boat. I wish we had had a review when we should have had one, but it is too late now. I am glad that the Minister has said that the Government would look at it at an appropriate time. If the noble Lord, Lord Stephen, is correct in what he said in intervening on my noble friend, there is hope that we might get agreement across parties and between this and the Scottish Parliament. That would certainly signal the way forward.

I thank my noble friend Lord Browne for his very positive response. He was a bit hesitant about it, but it was very positive indeed. Someone said that this was not the vehicle to raise this issue, but it was the only vehicle open to me. I accept that it may not be the best way forward. Therefore, because I accept the point made by the Minister in his very helpful reply, I beg leave to withdraw my amendment.

Amendment 17 withdrawn.

House resumed.

House adjourned at 6.52 pm.