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Scotland Bill

Volume 734: debated on Thursday 2 February 2012

Committee (2nd Day) (Continued)

Amendment 22

Moved by

22: After Clause 14, insert the following new Clause—

“Variation of student fees according to origin of British students

In Part 2 of Schedule 5 to the 1998 Act, under Head L (miscellaneous) at the end insert—

“L8. Variation of student fees according to origin of British students

The setting of student fees for students from England, Northern Ireland or Wales studying at Scottish universities at rates different from those for students from Scotland studying at Scottish universities.Interpretation“Fees” has the meaning given by section 41 of the Higher Education Act 2004.””

My Lords, it is my pleasure to move Amendment 22, which would prevent the Scottish Executive and the Scottish Parliament from imposing discriminatory fees on students at Scottish universities who are resident in England, Wales or Northern Ireland. The noble Lord, Lord Forsyth, has a similar amendment, Amendment 24. I must insist that he tabled it quite separately from my amendment and without any collusion whatever. I am saying this because his off-the-cuff comment earlier about the roadshow of the “toxic two” has been picked up north of the border and is already causing some interest. Both amendments were tabled with the same purpose.

This is the first recorded occasion when the Scottish media have paid attention to anything that was going on in this House.

I think that things are moving up the scale, although they are taking some time to do so. We are making a little bit of an impact there now.

I want to make it clear that in moving the amendment I am conscious of the sensitivities in relationships between Westminster and Holyrood, and between the UK Government and the Scottish Government. We have found in many of our discussions that this is a sensitive area in which we have to tread very warily, and I would hesitate to say anything that suggested that the UK Parliament was imposing its will upon the Scottish Parliament.

I say that having been a Member of the Scottish Parliament for four years. A number of noble Lords who have participated in these proceedings have also been MSPs—including the noble Lord, Lord Steel, who was Presiding Officer, the noble Lord, Lords, Lord Selkirk, Lord Watson and others who have participated, and, of course, the noble and learned Lord, Lord Wallace, the Minister who is to reply. Those of us who have been in Holyrood are aware of those sensitivities and we move with caution.

However, this Parliament has some responsibilities. The action of the United Kingdom Government in imposing very high fees precipitated this issue in the first place. I know that this is one area where the noble Lord, Lord Forsyth, and I might not totally see eye to eye. I am very pleased to see present the noble Lord, Lord Sutherland, who was a distinguished vice-chancellor of my old university, Edinburgh—not when I was a student, I hasten to add; he is not nearly that old, and neither am I. His experience and deep knowledge of the university sector will be very helpful, and that demonstrates some of the value of this Chamber.

We also have a wider responsibility for the European Convention on Human Rights and the equality legislation, as epitomised in the Equality Act. We therefore have to bear some responsibility for and take some interest in discrimination and equality. What has been not just proposed but agreed by the Scottish Executive and Scottish Government is tremendously unfair discrimination against students from England, Wales and Northern Ireland who go to Scottish universities. It really is quite disgraceful. It is astonishing, when you think of it, that students from Lisbon, Madrid or Berlin will all get in free to Scottish universities, but students from Belfast, London or Cardiff will have to pay fees.

Does the noble Lord recognise the supreme irony in the Scottish Government’s position? On the one hand, they are arguing for independence, but the policy they are pursuing can be carried out only while they remain members of the United Kingdom. If they achieved independence within the EU, they would not be able to have this pernicious policy.

My noble friend, who was a distinguished administrator and academic at the University of Aberdeen—he was vice-principal—has put his finger on one very important matter. In fact, he has taken away a major part of my speech. Never mind about that. It is a massive irony, as my noble friend said, that the Scottish Government are able to impose these discriminatory fees only because Scotland is part of the United Kingdom. If Scotland was an independent country, as the SNP wants, that Government would be unable to impose those fees. Students from England, Wales and Northern Ireland would be in exactly the same position as students from Poland, Germany or wherever in the European Union.

My noble friend is making a valid and important point, but there is another dimension to the issue. It is largely the Barnett formula, which taxpayers throughout the United Kingdom contribute to, that allows the Scottish Government to act in this way. We are discriminating against those taxpayers from England, Wales and Northern Ireland.

My noble friend and former boss as Secretary of State for Scotland has just stolen the second plank of my argument, but she put it very well indeed. It is a serious matter, because the parents of potential students at Scottish universities from London, Belfast and Cardiff are paying money into the UK Exchequer and that money, through the Barnett formula, subsidises Scottish universities, whereas parents of students from Berlin, Lisbon or Madrid are paying nothing to the UK Exchequer. That is an astonishing position to take.

This has been recognised as an unfair anomaly and discrimination not only by Members of this House. Today's Glasgow Herald states that legal action is already being taken by Phil Shiner on behalf of Public Interest Lawyers. Let me quote directly:

“Lawyers will launch court action as early as next month to stop the SNP Government's controversial policy of enabling Scottish universities to charge English students up to £9000 a year in tuition fees while home students pay nothing, The Herald can reveal”.

That action is taking place, but how much better it would be if, instead of having to defend that action—in practice, defending the indefensible—the UK Government were to accept my amendment and the Scottish Government were to agree to stop that discrimination.

To quote from the Guardian—no, it was the New Statesman, which is even better than the Guardian—the point has been made that,

“The resentment felt by English students, who will soon pay the highest public university fees in the world, will further destabilise the Union”.

One wonders whether the First Minister of Scotland has an ulterior motive, because it is alienating people in England. Lots of people from south of the border, when they find out about that, say how disgraceful it is. I am glad to say that I have also been approached by lots of people north of the border who think it is disgraceful: students, parents and others who are really concerned.

The New Statesman continues:

“The growing disparity between the two countries is a reminder of the incomplete nature of Britain's constitutional settlement”.

That is absolutely right, and something that I propose to deal with in other amendments to the Bill and which I have raised elsewhere. It continues:

“The UK is now neither a unitary nor a federal state and its largest constituent group—the English—feels increasingly unrepresented. For too long, politicians have complacently ignored threats to the Union; they must now act to repair our disunited kingdom before it is too late”.

I say to that hear, hear. This may be being done for some positive reasons, but in my view, it is for ulterior motives as well.

I hope that we will consider passing the amendment. It is important that we send out a strong call from this Chamber, from Westminster, to the Scottish Parliament and the Scottish Executive that they should reconsider this. I must be honest: I know that one or two of my colleagues in the House of Commons, one or two here and one or two in the Scottish Parliament have had some reservations about me pushing ahead with the amendment. To them, I cite Claire Baker, who is the Labour spokesperson on education in the Scottish Parliament. When the order went through the Scottish Parliament, the Liberal Democrats and the Labour Members did not vote against it for interesting reasons. Claire Baker said:

“I remain to be convinced that the order provides the right answer”—

she did not believe that—

“but I accept that action must be taken. After this morning’s evidence I remain concerned about the introduction of a variable fee and the lack of regulation and access arrangements, and I have wider concerns about the £9,000 fee level that has been set. However, I will support the order, which I realise is important if we are to manage cross-border flow and protect student places. I will return to the fee level, the regulator and other issues of concern when primary legislation is being considered”.

So there is deep disquiet. People in the Opposition in the Scottish Parliament feel that they are being given Hobson's choice: they feel that they are being forced into this. Otherwise, universities, including my former university of Edinburgh, will be squeezed even further in their income and find it more difficult. The members of the Opposition in the Scottish Parliament have been placed in an impossible position by the sky-high fees imposed by the United Kingdom coalition Government and by the discrimination imposed by the Scottish Administration. That pincer movement is making it very difficult for people.

Finally, I return to the main point. Whatever the detail of the argument, whatever the facts and figures—I know that the noble Lord, Lord Sutherland, and others will give more facts and figures about what is happening in the Scottish universities—it is deeply disturbing that such blatant discrimination should be taking place against students and potential students from England, Wales and Northern Ireland. I hope that the House will send that message very strongly to Edinburgh today.

My Lords, I speak to my Amendment 24. Just to make sure that people realise that the noble Lord, Lord Foulkes, and I agree only on some things, I respectfully remind him that it was the Labour Government who introduced tuition fees.

I remember that particularly well because the only time I have taken a Bill through this House was when the much missed late Lady Blatch was our Front-Bench spokesman. She was ill and asked me to take the Bill through the House. The rather splendid noble Baroness, Lady Ashton, who has sadly been taken from us to other duties, was leading on the Bill. I said to her, “Look, I have a problem”. There was an issue about gap year students having to pay more. I said, “If you will amend the Bill and allow for gap year students, I won’t waste your time and be unnecessarily difficult, but there is another thing I need you to do. I need you to help me to make sure that we do not get a vote on the principle of tuition fees”—which the Liberals were very keen to achieve—“because I'm being told by the powers that be in our party that we have to vote against tuition fees and most of the people on my side would be in the wrong lobby”. So we attempted to avoid having a vote because most of my colleagues rightly recognised that the future of universities depended on having tuition fees.

This is not a debate about the principle of tuition fees. Indeed, my amendment does not mention tuition fees. The Bill is about the exercise of power—we have taken back Antarctica; we are giving other things—and it defines the powers of the Scottish Parliament. The new clause in my amendment is intended to make clear that the Scottish Parliament is free to exercise its powers, but it cannot exercise its powers in a way that discriminates against people from England, Wales and Northern Ireland relative to people in other European states. That is the real wickedness involved in what is happening now: Greeks, Germans, Poles and French all get the same deal as the Scots, but English, Welsh and Northern Ireland people do not. When I say Northern Ireland people, Welsh people and English people, this is not about nationality but about the place where you live.

As I said to someone from the BBC the other day, “You work for the BBC. You get posted to Glasgow. You've got three children who are aged, say, 14, 15 and 16 and they want to go to university. You get rung up by the director-general and told that you have to move to Manchester. That could cost your children £100,000 in fees because they will no longer be eligible to go to some of the best universities in the country”—I declare an interest as a graduate of St Andrews—“such as St Andrews, Edinburgh or Glasgow for free. The moment you move to England, they will have to pay. This is just a complete nonsense. Of course, you could accept a job in Madrid, or Paris or anywhere else in Europe—but not in England, Wales or Northern Ireland”. It is an absurdity.

The real wickedness comes when you say in a reasoned way to Alex Salmond, “This is not fair”. The response you get is: “If Scotland is independent, the English will get the same deal as the Greeks, the French and the Germans”. That is not good enough. I hope that my noble and learned friend is not going to get up and give the same, lame arguments about how this is what devolution is about. No, it is not. Devolution is about making decisions in Scotland in the interests of Scotland. It is not about discriminating against people from the rest of the United Kingdom in a way which was never envisaged during the passage of the Scotland Act through this House.

I am sorry that the noble Lord, Lord McConnell, is not in his place. Last week, when we were discussing the Bill, he came up with a brilliant image when, in trying to explain the apparently irrational behaviour of the First Minister and his separatist colleagues, he said that it is a bit like tenants who want to get a move from a bad estate to another estate: the first thing you do is upset the neighbours. This is about upsetting the neighbours, and upsetting the neighbours it is. There is real anger about this.

I stood recently in a rectorial campaign in St Andrews—I only got 900 votes, which is actually not bad for a banker and a Tory these days. The winning candidate was very good indeed. I spent a week in St Andrews with the students. There you have, side by side, students working very hard, much harder than I ever did when I was at St Andrews, in a university which has been transformed. A third of the students are English, a third are Scottish and a third are European or international. The Scottish students will pay nothing. The fees are going up to £9,000 a year and it is a four-year degree, so that is £36,000 if you are English. The European students are paying nothing. They are all working side by side.

The other thing that struck me was that St Andrews just looks the same as it did—most medieval towns do. The restaurants and the pubs are the same. The students are certainly much more focused. However, whereas in my day there were no students working in the restaurants and the bars, there now are. They need to do so in order to make ends meet. It is quite divisive and wrong to have students from different parts of the United Kingdom faced with substantial borrowing and debt, or no debt, simply because of which part of the United Kingdom they live in. I believe that this is a deliberate policy to create anger. There is genuine anger and resentment, not least on the part of those students who feel that they are being given a better deal relative to their colleague than they perhaps deserve.

There is also anger on the part of parents. I suggested to someone who shall remain nameless who was at St Andrews with me that they might like to make a contribution to the university in its 600th anniversary year. She said, “Not on your life! Not while my children are not able to go to St Andrews without having to pay these enormous fees”.

So it is quite wrong. It would be entirely appropriate for the Government to restrict the powers of the Scottish Parliament so that it cannot operate in this way on any area of policy. As the noble Baroness, Lady Liddell, a former Secretary of State for Scotland, pointed out, the Barnett formula is extremely generous. The spending per head on education is about 20 per cent higher. It really is adding insult to injury to ask the English to send more money per head north of the border on education for the privilege of seeing their children treated less generously than people from Greece.

If the Prime Minister says that he will defend the union to the last fibre of his being, here is a test. I ask my noble friend to ask the Prime Minister to look at this, and ask him seriously whether we can go on allowing this to happen. This is very timely. Hitherto, the fees have been at levels of £3,000 a year, so it would be £12,000. Now they are going up to £9,000 a year, so it is a huge imposition upon these students and is building enormous resentment. I hope that my noble and learned friend will give this some consideration.

A third party is very angry about this: the universities. I am delighted to see in his place the noble Lord, Lord Sutherland, with all his experience of higher education in Scotland. The universities are the poor mugs who have got to set the fees with this difficult and divisive position for their students, and who take all the flack for its consequences. I am not going to press this to a vote today, because I want to give my noble and learned friend time to think about it and come back at a later stage, but I hope that he will take it seriously. This is the first opportunity that we have had since the introduction of tuition fees and top-up fees to debate this matter. It is widely resented around the country. It is a deep, deep injustice which needs to be put right.

My Lords, I thank my two preceding speakers for their kind remarks. I run the risk of being drawn into this love-in going on across the Benches and I do not especially wish to be, so I hope that they say something nasty about me at some point.

I support the two amendments. Neither is perfect, and they need a bit of further thought, but I particularly welcome their pairing. Amendment 22 illustrates very well the general principles implied in Amendment 24, which are what I wish to speak about. As a declaration of interest, I am a former principal of Edinburgh University. I have links with most of the universities that I will talk about, but that of course includes many south of the border that are our friends, colleagues and competitors. There is a view across the whole country on this which must be taken it account.

The problem, which has been well illustrated, is clearly the differentials in treatment of students from what is now called the RUK group—there is now a formal title in Scotland for the “rest of the United Kingdom”—and students from the European Union. This is disproportionate. The differential between them and the way in which they are now being separated out is unjust and is not something that we happily live with on either side of the border, or in the university system across the country.

This division started quite some time ago. There was a trickle of complaints when fees were originally raised through this mechanism but they were small sums of money, comparatively speaking. This trickle grew into a pretty strong stream when the target hit £3,000 and is now a vast torrent. There will be much irritation and anger, and a great degree of thinking twice about where to study as a result of this policy.

The figures in question come out of a series of decisions taken on the administration of higher education which started in 1992, when the two funding councils were separated. On grounds of consistency, I have to say that I opposed that separation. Indeed, if you read the relevant speech of the Member for West Lothian in the other place at the time, you will see that he quotes me as being against it. That was because I began to worry then about the kind of separation that will take, and has taken, place. The two funding councils are proceeding well according to their own administrative arrangements. I do not blame the accounting officers or members there. They have financial settlements imposed upon them by government, not least by this House.

The division that occurred then has grown in practice, perhaps in a way in which none had envisaged and certainly in a way that most of us regret. The issue today is not whether you can turn the clock back completely. Devolution has happened; I accept that. The issue is whether we want the kind of devolution that produces this sad differential between students from different countries and different areas within the United Kingdom.

Was the noble Lord as uncomfortable as I was when reading the justification of some leaders of Scottish universities for imposing the highest fees? They used the argument that it was necessary in order to prevent Scottish universities being swamped by English students. I found that deeply uncomfortable.

I am very uncomfortable with that. On the other hand, there were reasons, which I shall come to now, for the level of fees being set as it is.

The policy of the Scottish Government and the funding council is such that in the period from last year to next year a gap of roughly £40 million will have opened up in the funding of those universities. The University of Edinburgh, much to its credit—as the noble Lord, Lord Sewel, will be pleased to hear—recruits a large number of students from south of the border, and they contribute significantly to the life of that university. That is part of the way in which the university focuses on its United Kingdom, let alone its international, obligations.

With regard to that gap of £40 million, I know it is put about by some that the universities are raiding the coffers of the rich English and that is why they are setting the fees as they are, but that is not the case. A funding gap has been created. I pay tribute to the University of Edinburgh because I believe that at the same time it has put in place the most generous and best scheme for helping students who could not otherwise afford it to come from south of the border. It is a very good scheme which I think could be emulated by others.

Where did this fees level come from? It came from two decisions. One was the coalition Government’s decision to increase the fees to £9,000, although I have to say that they were following the example of their predecessors. This is not an argument about whether there should or should not be fees. I resist the temptation to get into that, although I have strong views on it. That was one element of what created this division. The other is that the Scottish Parliament, through its allocation to the funding council, deliberately created a gap in the funding of Scottish universities—it is in its accounts—of over £50 million. It created that gap and in effect instructed the universities to raise the money from students coming from the rest of the United Kingdom. That being so, there is a dual responsibility here, and it simply illustrates the point made more eloquently by the previous speakers about how we can sometimes set out on a constitutional road that leads not just to unintended consequences but to very unfair and unacceptable consequences as many of us see them.

Students from the rest of the United Kingdom, or RUK—it has a name, which is a sign of how well entrenched it is—will have to live with students whom they know will be paying none of the £36,000 that they are paying. The case has already been given of at least two such universities. It is sometimes suggested that the £36,000 is unnecessary. That is not true. If we are to compete with the best in the United Kingdom, that is the carefully estimated sum of money that has to be put back into the budget of individual universities, and they have set their fees accordingly.

I should mention that I was rather pleased to hear in the Antarctic debate mention of the University of Edinburgh. It has very strong research interests there and I am glad that we are protecting those interests. The only other interest that I could think of Scottish universities having in the Antarctic was if a very strong strain of clever penguins started applying to universities. They would have to decide what fees to charge the penguins, but happily we are unlikely to face that problem.

To summarise, an indefensible gap has arisen. I am not sure that either of these amendments would deal with it completely, but it is time for further thought. Do we want our university community, which shares knowledge and a passion for truth, to be divided within the United Kingdom financially in this extrovert way—a way that will distort human behaviour and the ways in which applications to universities are made? I hope not.

My Lords, I am delighted to be able to follow the noble Lord, Lord Sutherland. He referred to the eloquence of the other speakers but, if I may say so, he has spoken with great eloquence, great authority and great experience on this subject.

When I woke up this morning, I had not been expecting to take part in this debate but I was working in my office and at other meetings in the House and happened to bump into my noble friend Lord Forsyth over a sandwich. Having realised what the subject is, I am only too delighted to be able to intervene. I hope to speak on the subject briefly because many of the points that I wanted to make have been made already.

I was born and brought up in Scotland and, like my noble friend Lord Forsyth, I went to the University of St Andrews. I listened to the point that the noble Lord, Lord Sutherland, made about the contribution of English students to the University of Edinburgh. I recall very clearly that one of the great richnesses during my time at St Andrews came from the university having so many students from America and elsewhere but particularly from England. I believe that that had a very beneficial effect in widening my horizons.

Subsequently, of course, I came to England and for many years represented an English constituency, and I shall say something about that in a moment. The noble Lord, Lord Foulkes, referred to the sensitivity of dealing with the Scottish Parliament on this issue. However, I think that there is no more sensitive an issue than this question of tuition fees for parents who live in England but who, like me, may have been born in Scotland and who hope that their children will go to Scottish universities. From knowledge gained from my friends and particularly from my constituents in Norfolk, I can say that the resentment is very great.

I know how this issue arose originally—the Scottish universities had to accept the ruling that EU students had to be treated the same as those in Scotland but that did not apply in the United Kingdom. That argument is not understood by any parent or potential student who wants to come to Scotland. I hesitate to mention the Barnett formula but the noble Baroness, Lady Liddell, has done so already. I was going to look at the Barnett formula in a slightly different context. I have always—since first being in government—been a strong opponent of the Barnett formula, but that is another story. However, there is no question that Scotland benefits greatly from the formula. One way of putting this resentment right would be to meet the fees required from English students coming to Scotland through the extra expenditure that the Scottish Parliament has received from the Barnett formula.

I want to say one other thing on this subject. For many years, I tried to persuade my constituents and many others in Norfolk and elsewhere of the unfairness to those in England—very often receiving grants from local authorities and so on—of the Barnett formula in treating Scotland so much better. I could never persuade my constituents of the importance of this case because it seemed remote from them. However, the one issue that they really understand and which creates resentment is when they want one of their children to go to the Scottish university that they attended but they find that the financial penalties are such that they are not able to do so. That is what comes home to them. I used to get a lot of representations from people in this situation and I could never convince them otherwise; I could only agree with them. That is why I strongly support these two amendments.

I am very pleased to follow the noble Lord, Lord MacGregor. There seems to be an outbreak of unity in the Chamber today and we should be grateful to the noble Lords, Lord Forsyth and Lord Foulkes, for their amendments. The amendments may have imperfections but the point has been well made that devolution was to be about the extension of democracy, greater accountability and, ultimately, greater transparency. Through that, we hoped that there would be a measure of equity. In fact, what we have here is a classic example of the inequitable character of our constitutional arrangements.

I voted very reluctantly in favour of the principle of charging fees—I was probably one of the last converts from the Whips’ arm-twisting process and what have you. However, I am not sure whether I would have voted in favour of the principle of fees if I had thought that it was going to be abused in the way that it is being abused by the Scottish Government. From the very speedy but quite succinct analysis given by the noble Lord, Lord Sutherland, of the accounting procedures adopted by the separatist Administration in Edinburgh, it is quite clear that they are out to discriminate against the rest of the United Kingdom and to prevent young people coming to our universities. If they do come, they will be making a disproportionate contribution to the finances of these institutions.

It is certainly the case that some institutions for historical reasons, such as Edinburgh, are probably better endowed and better able to introduce generous systems of support. There are a number of institutions that one might almost call marginal in their financial capability to provide the kind of support—

I thank the noble Lord for giving way. The money that Edinburgh will put forward for needy students comes from the total fees package that is taken in. Clearly, they test alumni—looking around the Chamber, I remind Members of this—for additional funds to do that, but a significant part of the money comes from the fees that they charge.

The point I was going on to make is that some of the newer institutions are less well endowed in the round, have smaller numbers of alumni for a start, and are discriminated against in another way. Those institutions are not as attractive and are therefore unable to benefit from students from the rest of the UK or from abroad. Even within the system there are difficulties and inequities. There are imperfections in the two amendments, and the Government have to take the point that this Chamber is not happy with the way in which things have developed, nor with the unfairness that has been inflicted on children and families across the country. One part of the United Kingdom is able to benefit from devolution in this way and have free education at undergraduate level, while others in the same country are discriminated against when they come to Scotland to study or are deterred altogether, which I think is even more significant. Our universities and our Scottish institutions make a unique contribution to the mix.

I have had this discussion in my own family with my sons. They say, “We’re not really interested in going to Oxbridge; we think Edinburgh and Glasgow are perfectly adequate to provide us with an education”. One could argue that they might have got the emphasis a wee bit wrong, but that mood still prevails. However, we do not want children to grow up in some kind of Caledonian closet, where they will not be open to other relationships and cultures. My younger son, who went to Glasgow, learnt a lot from being in the same halls of residence and playing in the same football team as young men from Northern Ireland, whose cultural and social background was dramatically different from his own. Such people will not necessarily have the chance to come to our institutions and the Scots who go to our institutions will not have their company.

Money is at the beginning, the middle and the end of this situation, but there are other dimensions. When we started on the road to devolution, we wanted, as I said earlier, to create a better United Kingdom, not a United Kingdom that was inequitable because of the cynicism of separatists in Scotland who wished to use the mechanism at their disposal to discredit the concept of the UK. This is an opportunity for us to avoid that and to ensure that they can be exposed for the charlatans they are when they argue in favour of free education for some but not for the rest, not because they do not happen to be Scottish but because they just happen to live in the wrong part of the United Kingdom.

My Lords, I should declare an interest. I have recently been appointed as a trustee of the development trust for the most recent university in Scotland—indeed in Britain—the University of the Highlands and Islands, which has achieved its status at the hands of the Privy Council in the last year.

I cannot rest today on the arguments about university fees and the rights and wrongs of charging some. I know that opinion is deeply divided about that and that some of those involved in universities have made strong cases for substantial fees. Something as inequitable and discriminatory as this must exercise everyone in this House and in the country. What has been done by the Scottish Administration is deeply divisive.

The first successful advocacy that I indulged in as a boy was to persuade my father not to send me to an English boarding school but to keep me at the Glasgow Academy. I remember trying to persuade my parents’ friends that they should take part in that advocacy because I got so much benefit from their generation and not just from my own generation. After that campaign had been won and I was allowed to remain at school in Glasgow, I remember that I received a letter from the right honourable Hector McNeil, who was at the time Minister of State to the Foreign Secretary, Ernest Bevin, saying, “Well done. You have chosen a good school and you have done the right thing, but I must tell you that there is a great deal to be said for thinking about going to a university in another part of the United Kingdom and I would encourage you to look at Oxbridge”. I did and I went there.

In the case of my own offspring, my son, the situation was reversed. In the House of Commons I represented a remote constituency and it was decided that my son should go to school in London where I would have a better chance of seeing him. In turn, he went to Edinburgh University. I wonder whether he can be described as a Scot or not? As the rules stand, it is all about where he lives. It seems to me that this is a shocking determination. In my son’s case it did not happen. He went to Edinburgh. Pupils who are at the University of the Highlands and Islands, Edinburgh University or wherever are now faced with grossly unequal circumstances. It does not encourage people to move around and gain new educational experiences in a new and different part of the country.

The University of the Highlands and Islands in particular will seek to attract people to study there who are engaged in many different, discrete and sophisticated scientific and other studies. I fear that this will have an adverse impact on those studies. I noted the reference to the University of Edinburgh studying Antarctica. Cambridge University is promoting similar studies. People may consider that they might as well go to Cambridge as Edinburgh if they have to pay the same fee. This higher educational process will not benefit the younger members of our society if people are discriminated against in this way.

The arguments have been very well deployed in this excellent debate. I ask my noble and learned friend to take away these arguments and discuss them with senior colleagues who are in a position to do something. It is important that there should be a direct dialogue before Report not only with our senior Ministers but with representatives of the Scottish Executive. The public utterances that have been made by the First Minister, Mr Salmond, have been utterly deplorable in their discriminatory effect, and calculated to stimulate hostility among those who are not Scots. That is not how our Government should be managed. Although I cannot expect the Minister to give an entirely positive answer today, I hope that when the Bill comes back he will have taken these views into account and come up with proposals that right this serious wrong.

My Lords, I strongly support both my noble friend’s amendment and that of the noble Lord, Lord Foulkes. I should perhaps declare an interest. I have two grandchildren, both aged 17. One is at school in Scotland and has been offered a place at Cambridge. The other is at school in England, lives in England and has been offered a place, conditional on her A-level results, at Edinburgh University.

I may have a potential interest that I did not declare. I have grandchildren living in England who may wish to go to a Scottish university.

In my case, no doubt everyone will realise that the grandfather will have to pay. That is one part of it. I strongly support what my noble friend Lord Maclennan said when he asked my noble and learned friend on the Front Bench to take this matter away, consider it carefully and come back with an answer that will give us some satisfaction.

The question was asked earlier in this very good debate: do we want this sort of devolution? For my money, I think not—and I certainly know by the amount of disquiet in Scotland over this matter that there is concern that this must be sorted out. It should not be within the power of the present Scottish Government to exercise power in this way, with discrimination writ all over it in big letters. We must think of another way of dealing with this. I realise that legally they are quite correct, but morally they are not. If they want to try to divide the United Kingdom, this is the way to go about it—and frankly I dislike it intensely. It goes to the heart of the argument over whether the United Kingdom should be broken up. I sincerely hope that the two amendments in this group will start a debate in this House and outside it, as my noble friend Lord Maclennan said, and that the Minister will listen carefully and realise the anger that exists up and down the country over this discriminatory measure.

My Lords, it is a pleasure to follow the noble Lord, who put the nub of the issue facing the Government and the Committee very forcefully and clearly. Once more in this Committee, the noble and learned Lord is caught in a pincer movement between my noble friend Lord Foulkes of Cumnock and the noble Lord, Lord Forsyth of Drumlean. Yesterday I was in conversation with a Scottish broadcast journalist, who shall remain nameless. He suggested that they were rapidly becoming the Chuckle Brothers of Scottish politics. No doubt as our deliberations go on the divisions between them will become apparent, although many of us know where they lie in any event.

In raising this issue, my noble friend Lord Foulkes brings to your Lordships' House a matter that is perceived by many in Scotland and, indeed, in this Committee, to be a cause of great unfairness. There can be no doubt about that. There are large numbers of people in Scotland who do not think that this is a fair way in which to treat students from England, Wales and Northern Ireland, and for good reason, because Scottish people pride themselves on the progressive nature of their thinking and on their values. Instinctively, they think—and they are right—that it is unfair that students who come to Scotland from England, Wales or Northern Ireland are treated differently from Scottish students or students from the European Union. The difference is obvious. We have the benefit in our deliberations of the summary by the noble Lord, Lord Sutherland, of the short history of this difference.

It is undoubtedly true that the fact that there are different systems of student support and student fees in different parts of the United Kingdom means that there is discrimination. While it has existed for some time, that discrimination has, by recent decisions of the UK and Scottish Governments, been driven to new heights, and consequently it is now much more apparent than it was. As my noble friend’s amendment and the support for it show, it raises real issues about whether within the United Kingdom we can continue to operate such a discriminatory regime without addressing its inherent unfairness. To that extent, my noble friend is to be congratulated because he focuses his arguments very sharply, and it is clearly right to debate them, as the contributions we have heard thus far make clear.

Whether it is appropriate to have this amendment in this Bill is a matter that the Minister will no doubt address. In one view, having devolved education, including higher education and student support, to the Scottish Parliament, it is a matter for it, and we should live with the consequences, which should be reflected in the political circumstances in which it operates. Whether there is some strong constitutional reason for leaving this to the Scottish Parliament, the amendment proposed by my noble friend raises real practical issues, and the debate that took place in the committee in the Scottish Parliament on the order that set out the specification of these fees encapsulated that. These practical issues will be reflected in the budget for Scotland. I do not think that any noble Lord who has contributed to this debate seeks to set the budget for the Scottish Government or, indeed, the Scottish Parliament but, effectively, that might be what we were doing if we dealt with this issue.

My amendment is different from that of the noble Lord, Lord Foulkes, and we will no doubt come to it, but I have a simple, straightforward question for the noble Lord. Do the Opposition think that as part of the devolution framework, of which they were the midwives or architects, it is right that the Scottish Parliament should be able to exercise any power which results in discrimination against people resident outwith Scotland relative to people in the rest of the EU? It seems that there is an important principle here, of which fees are an illustration.

I have not been long in your Lordships' House, but I have learnt to be wary of the noble Lord’s simple questions. It is a pretty straightforward question and, when we were sharing responsibility with the people of Scotland for the devolution settlement, it was certainly never envisaged that this discrimination against young people in relation to higher education would be a consequence. I do not think anybody imagined that. In fact, I suspect that had the issue of internal discrimination in the United Kingdom been raised, we would have set our face against it in the original Act.

However, the politics of Scotland have moved on and, as the noble Lord, Lord Sutherland, and my noble friend Lord Foulkes spelt out very clearly, decisions have been made about student fees and the way in which we support higher education, and they have had consequences. One of them has been a significant potential financial disadvantage to Scottish universities, which could have untold detrimental consequences in the longer term for their ability to hold on to the best of their staff or to provide the level of education that they pride themselves on having provided, in some cases over centuries. That was an issue that had to be addressed and those who have looked at the way in which this discrimination has come about and how it was debated in the Scottish Parliament will know what the issues about funding are. It may be possible to address them in other ways but I do not know the detail of that. I am not supporting the way in which they have been addressed here. It is right that we should debate them but I am not entirely certain that this is the right way to do it.

That brings me to the noble Lord’s amendment, which is complementary to my noble friend’s amendment but is much wider because it seeks to establish a principle that is not related to a particular area of policy. Instinctively, I support that idea. However, as the noble Lord spoke to his amendment I was trying to think of another area of activity where this discrimination has surfaced. The only place I could see it had previously surfaced in my experience in Scotland was in relation to my own profession, the legal profession, and the rights of audience.

It is so long since I practised law in Scotland that I am not entirely sure of the current position. But I remember that, when I did practise there, there was discrimination about the recognition of the qualifications which I held and the rights of audience that I had both north and south of the border. I was conscious that we lived within an EU framework where those qualifications and rights of audience should be respected throughout. I know that that situation persisted for some time—I am not sure what it presently is—on these islands.

However, I have to say that it was not just the Scots who were responsible for this situation. All the individual jurisdictions of these islands practised discrimination in that area in recognition of those professional qualifications in the legal profession. This discrimination, in principle, predates devolution. It persisted through devolution and was practised, to my knowledge, not just by Scots against others but against Scots legal professionals for a period of time. It may not have continued and I am not entirely sure of the position.

I am most grateful to the noble Lord and I am completely out of my depth because I have never really understood the legal profession. Is he saying that a situation existed where there were rights of audience that were unique to Scots that would not apply in England, but would apply to the French, the Germans and everyone else in Europe? Is that the position? If that is the case, rather like me I am sure he would believe in the single market and, advancing that, would regard this as anomalous.

The noble Lord raises a point of principle. My point was that, to my knowledge, there was one other offence to that principle. Others may know of others. I do not know whether that situation persists because I am not up to date enough. I know that there was a period of time when advocates from the European Union had a right of audience in Scottish Courts as a consequence of their own domestic qualification, whereas, as I remember it, that did not apply to English advocates and vice versa. Indeed, I have many friends in the legal profession who qualified again, as it were, in England in order to be able to appear before English courts. But if that no longer persists, this area in relation to student fees is the sole area of discrimination that I can drag up from my own experience. Whether in those circumstances it is right to deal with this with some amendment of principle, I would have to consider. If the only issue relates to student fees, perhaps there is another way to address that apparent inequity and it should be thought through.

Going back to my noble friend’s amendment, I wish to make a point which has already been alluded to; namely, the real inequity of this current discrimination of regime is that these decisions are beginning to affect the kind of students we get in Scotland from England, Wales and Northern Ireland. The continuation of our union, which I support, depends substantially on our young people interacting. The differentials in the cost of education weigh heavily in decisions that our young people are taking about where they wish to be educated, as we have heard from those who are fathers or grandfathers of young people who have made those sorts of decisions. We are in danger of creating a Scotland in which our indigenous Scots student population will only meet the children of rich English, Northern Irish and Welsh families. At the same time, less well off children in other parts of the United Kingdom will be denied the benefit of a Scots university education. I do not think that can be right. The question that faces this Committee is the best way to address it.

I am pleased to say that on this occasion I do not speak for the Government. I am glad to have been able to make a short contribution to the debate. It has been enhanced by what we have heard from the noble Lords, Lord Sutherland, Lord MacGregor, Lord Maclennan and Lord Sanderson, and my noble friend Lord O’Neill. I do not think that the noble and learned Lord can be in any doubt about the mood of the Committee on allowing the scope for discrimination to persist in the framework of the Scotland Act. I will listen carefully to what he has to say and I am certain that we will find a way of returning to this issue on Report once we have had a chance to take in his response.

Would the noble Lord care to bear in mind that the Law Reform (Miscellaneous Provisions) (Scotland) Act removed the discrimination which he claimed with regard to rights of audience for solicitor advocates? I also understand that my noble and learned friend Lord Mackay of Clashfern was instrumental in ensuring that the same thing happened south of the border.

I am grateful to the noble Lord for that intervention. I am a member of a profession that prides itself on discrimination—at least certainly in its history it did—between those who had rights of audience in the higher courts and those who were historically perfectly capable of making the arguments but were denied. That division was addressed in the way the noble Lord has suggested. I am absolutely certain that the discrimination I was alluding to, which was based more on geography than on someone’s membership of certain branches of the profession, has now been addressed. I am not entirely sure whether it has or not, but the purpose of introducing it was not to take us down a cul-de-sac, but to explore the issue of whether the interest in principle of the noble Lord, Lord Forsyth, was a necessary way of redressing a situation that went beyond student fees.

Perhaps my noble friend would remember that we do not need to have a solution that covers every form of discrimination. He should not allow the waters to be muddied by the somewhat unhelpful intervention of the noble Lord, Lord Forsyth, by way of a question. It is quite clear that on the educational issue here, this Committee is united. That is the message which should go up the channels of the Labour Party to those who will think about considering another amendment at some stage and whether or not it could be supported. Let us be clear: we just want something on fees and on the discriminatory effect of that issue.

I am grateful to my noble friend for his clarity of presentation. I do not think that anyone, having heard the debate or on reading it in the future, as people will, could be in any doubt about the mood of the Committee over this issue. That message will get through to those who need to hear it. In a sense, my noble friend was saying much the same thing as I was. I am not sure whether this is an issue which as a question of principle actually goes beyond the question of student fees, but if it does, then perhaps it needs to be addressed in the way suggested by the noble Lord, Lord Forsyth.

Perhaps I can help the noble Lord. It is great to have a rebuke from the Opposition Benches. I was actually thinking that it would be easier for the Opposition to accept a point of principle in respect of devolution rather than accept a restriction on the policy freedom that was implied for the Scottish Parliament. I was just trying to be helpful.

I am pleased to have been able to give the noble Lord another opportunity to be helpful to the Committee, and at this point I will conclude my remarks.

My Lords, the Committee owes a debt to the noble Lord, Lord Foulkes, and my noble friend Lord Forsyth for introducing this debate. As the noble Lord, Lord Browne, said, there can be no doubt as to the mood of the Committee on this issue, and views were expressed with great passion and sincerity. I think that I have some common ground with the noble Lord, Lord Browne, but I want to read his remarks carefully. I accept the sympathy that he offered me.

As the noble Lord, Lord Foulkes, said in moving the amendment, we have to be conscious of the sensitivities of relationships between the Westminster Parliament, the Scottish Parliament and the respective Governments of the United Kingdom. He said that we ought not to appear to be imposing something on the Scottish Parliament, albeit that is what the impact of the amendments would be.

I am in a slightly more difficult position for a number of reasons, not least because it would not be appropriate for me as a member of the UK Government to express an opinion about policies of the Scottish Government. Others have had the freedom to do that, which I could perhaps envy, but it would not be appropriate for me to do so other than to make some more general points.

My noble friend Lord Forsyth said that the debate should not be about the principle of tuition fees; on the other hand, it leads to a question of choices. A choice was made back in 1999-2000 by the Scottish Parliament not to charge tuition fees for domiciled Scottish students, whereas a choice was made by the Westminster Parliament under the previous Administration and continued by the present Administration that there would be tuition fee charging. The problem, which has given rise to such passion, would not have arisen at all if the United Kingdom Parliament had made a different choice.

Likewise, if I may pick up the point made by the noble Lord, Lord Sutherland, the Scottish Government had a choice as to whether they should fund universities in the way in which they have done, with the fee structure that they are proposing, or to make more money available to the funding council, as did the Administration which I was proud to serve back in 2004. Then, we made the deliberate choice, from among all the priorities competing for government funding, to give additional funds to the further and higher education sectors in Scotland. That in some respects is what devolution is about: allowing the Scottish Government to make these choices. A part of what this Bill is about is making sure that there is greater accountability for the way in which money is raised. That is the background against which we should look at these issues.

Two strong issues emerged in the debate: one was the £9,000 fees for students from England, Wales and Northern Ireland, and the other, perhaps drawn out more in the amendment of my noble friend Lord Forsyth, related to the fact that European Union students do not pay fees if they study in Scotland. I fully recognise why the latter is seen as being very unfair to students in the rest of the United Kingdom. I make no bones about the fact that it is a result of European Union law, which, if it was to be changed, would require action far beyond this House.

European Union law could not be changed unilaterally. I know that my noble friend proposes in his amendment how we might address it, but that is not the same as changing European Union law, which I am sure he would be the first to accept.

When the package of free tuition for Scottish domiciled students was introduced in January 2000, my noble friend Lord Stephen—or Mr Nicol Stephen MSP as he then was—as the deputy Minister for Enterprise and Lifelong Learning, indicated that the proposals were produced based on the best advice available given the risk of challenge by other EU nationals. He went on to say that he was disappointed with the legal advice and would like it to be different, but that was the position in terms of having to operate within the confines of European Union law. I would not wish to suggest who gave that advice because I am sure it was sound, but given that we had to operate within the confines of European Union law, that was how we got into that position. Let us not be under any illusion that it was something that the then Scottish Executive did because they wanted to do it. It was because they were obliged to do it.

Something that has not been fully understood until now is that the same tuition fee was charged for students from Scotland, England, Wales, Northern Ireland or the European Union, except that in the case of Scotland and European Union students, the Scottish Government paid it. It was not that it was a different rate. It was the same rate across the board and the Scottish Government paid it for Scottish and EU students. Those coming from England, Wales and Northern Ireland had their own arrangements for funding and for meeting the fees. Of course, we now see a difference. There is a difference in the new order which, it was pointed out, was not opposed by any party in the Scottish Parliament when it ultimately went through, which set a differential fee.

It is wrong to suggest that this difference has suddenly come upon us. I appreciate that it is starker, but it cannot be said that it was unknown at the time of devolution. Anyone who went through those years particularly remembers the 1999 Scottish election campaign. The issue of whether there should be free tuition for Scotland domiciled students with a key one in that campaign. It was a key issue in the negotiations that led to the formation of the coalition Government.

The principle was accepted at the time that Scotland and the Scottish Parliament could operate on a different basis from that which would operate in different parts of the United Kingdom. That principle was accepted and what we are saying today is not that the principle has changed but that the numbers have changed so we should be re-examining the principle. I recognise why that is the case. At the core, my noble friend said, “Do not come away thinking that this is a matter of principle: that once you devolve powers you have to live with what is devolved”. But there is an important principle. It was one that was not challenged when the distinction was first made and therefore we must be very careful as to the grounds on which we are now challenging the principle.

The noble Lord, Lord Sutherland, and my noble friends Lord Forsyth and Lord MacGregor, all mentioned the importance of the quality and the excellence that we want to see in Scotland's universities. We want to attract students to Scotland's universities because of the quality and the excellence of teaching and research. I can think of some educational institutions south of the border that would also claim to have excellence. A student resident in England choosing between Oxford and St Andrews will face the same fees whichever they choose. Perhaps St Andrews is an exception because the four years would all be at £9,000. Some Scottish universities have capped fees at £27,000, bearing in mind that there is a difference in the three-year or four-year course. That is a matter for the universities. But the residency does not affect the price of their higher education. They have the choice of going to an English university. It is not as if they are suddenly not going to be paying fees if they go to an English university which they suddenly have to pay if they go to a Scottish one. It is important that we put these issues into that kind of context.

There is, however, one significant difference. Many of us come from a generation where we had to live at home when we went to university, which I did intermittently for a few hours each night. But that is not a choice available to students going from England to Scotland, so they cannot economise on the cost of university education by making a choice that others can, for example, who live in London.

I agree and accept that, but we are perhaps kidding ourselves to think that those students in Scotland who chose to go to a university very close to home were not also taking into account financial considerations; albeit that they were fortunate to have so many universities of considerable quality on their doorsteps. If you came from the part of Scotland that I came from, nowhere was on the doorstep. I pay particular tribute to my noble friend Lord Forsyth for what he did when he was Secretary of State for Scotland in giving an impetus to the idea of the University of the Highlands and Islands, which, as my noble friend Lord Maclennan has indicated, has now come to fruition. It has taken a somewhat long time but it was worth it. I know how keen he was on it. It has made higher education available on the doorsteps of many people who otherwise would not have had that opportunity.

I never particularly like, and do not think this debate lends itself to, technical issues, but the amendment from the noble Lord, Lord Foulkes, is deficient in a number of ways. It reserves to the UK Parliament the power to make variations in fee levels between different parts of the United Kingdom. I am sure that it is not really quite what he was intending. I acknowledge and appreciate that my noble friend Lord Forsyth has sought to couch this in a way that is more related to an issue of principle rather than focusing on tuition fees. However, as the noble Lord, Lord Browne, pointed out, with the possible exception of rights of audience, you would be hard pushed to actually think of any other circumstance where this principle might arise. I will clarify the position on rights of audience. I clearly recall that it certainly was the case. I know of many practising advocates now at the Scottish Bar who are also at the English Bar—and some, indeed, at the Northern Ireland Bar—as well as some solicitors trained in Scotland who now work in firms in England. It does seem easier at a practical level to go between jurisdictions than it was hitherto. The point of my noble friend’s amendment is very much focused on tuition fees, which he did not attempt to disguise in speaking to his amendment.

However, one should always be aware of the law of unintended consequences. One possible consequence of his amendment is that the Scottish Government could address this by paying the tuition fees of every student from England, Wales and Northern Ireland. My noble friend says that would be fine. Obviously it could be budgeted and other things would have to give way to fund that. However, it would suddenly mean that it would be hugely cheaper for students from England, Wales and Northern Ireland to attend universities in Scotland. My noble friend says that is ridiculous, but of course that would be the consequence.

That is the position for Greeks, German, French, Italians and everybody else in Europe—that it is considerably cheaper for them to come to Scotland, where they get a free education relative to England. It is a ridiculous argument.

It is not a ridiculous argument at all, because it is very difficult if you are a student coming from Greece, where English might not necessarily be the language in which you would more readily study. It is far simpler if you are coming from Carlisle to go to Edinburgh than it would be to go to Birmingham. I can assure my noble friend that when tuition fees were increased in England and variable fees were brought in, in around 2004, there was clear evidence—which I was presented with as the then Minister with responsibility for higher and further education—that that would have a considerable impact on cross-border flow, and that was something that we had to address. Indeed, we did address it.

I point out to the Minister that Ireland charges extremely low tuition fees at universities. This has not led to a huge increase in the number of British students going to Irish universities.

The point I was making was that there was clear evidence, which we were looking at in about 2003 or 2004, in an overall review we did of higher education at that time in Scotland, that a differential where Scotland was much cheaper than England, Wales or Northern Ireland would have a considerable impact. I totally subscribe to what noble Lords have said in this debate—that the essence of many of our universities, the advantage of them and the thing that gives richness to student life, is the fact that you are shoulder to shoulder with people from many different backgrounds, nationalities and cultures. I subscribe to that overwhelmingly. But it is naive in the extreme to think that, if university tuition in Scotland was free for students from England, it would not have some quite material effect on the numbers applying.

I thank the noble and learned Lord for giving way and I promise not to intervene again, but there is a further argument in this area that is relevant. If Scotland is not charging fees for students who come from the continent but England is, there will be a displacement of students from continental bases to Scotland. Last time I did a back-of-the-envelope calculation, European Union students were costing Scotland between £80 million and £90 million a year. That could grow as an unintended consequence of the policies. I am not questioning good faith or decisions taken constitutionally in the right way; I am just saying that we really are creating consequences, and that is another one that we ought to look at very carefully.

I think that actually supports the argument that I was just making—that if the numbers are going up from European Union countries, a fortiori the numbers would increase from other parts of the United Kingdom. That is something that would have to be addressed. I do not think that my noble friend has actually thought that through.

Just as the noble Lord, Lord O’Neill, said to the noble Lord, Lord Browne, that he might have to talk to the leadership of his party before the matter comes back at the next stage, so my noble friend Lord Forsyth said that I should draw this matter to the attention of the Prime Minister and my noble friend Lord Maclennan asked that we think about this before Report stage. I do not think that it would be a service to the House if I did any other than say that obviously we have to reflect on the very strong views that have been expressed in this debate.

I am grateful to my noble and learned friend for what he has just said, but the principle that my noble friend Lord Forsyth has advocated is one that could conceivably be important—not in the light of our previous experience, because that kind of discrimination has been anathema in the United Kingdom, but in establishing this precedent, which one can see being extended to other spheres. That might include the domicile of people taken into care because of illness in Scotland. If they happened to be domiciled in England, they might be subject to much higher charges, and that by law. There is a very important principle here, which I hope will not be confined just to education, although education is the immediate reason why we need to discuss these things.

I recognise the principle that my noble friend is enunciating. That is why I said that we do not know what the consequences would be of the amendment proposed by my noble friend Lord Forsyth. It goes right to the heart of the architecture of the Scotland Act—to Section 29, which makes certain legislation not law, as I am sure the noble Lord, Lord Sewel, remembers well from the days of the passage of the Bill in 1998. To add this as a principle of devolution when its possible consequences have not been thought through is something that I would not wish to accede to without much greater thought as to what its implications might be.

I conclude by making that commitment but I also have to conclude with the other principle—the principle of devolution. Inevitably, if you devolve matters, Governments may not choose the course that you would wish to see. It is probably not unfair to say that Mr Tony Blair was not entirely happy when he learnt what the Scottish Government were proposing in 1999 about abolishing tuition fees and bringing back more generous student grants, but he accepted that that was one consequence of devolution. If we pursue a line that has been sometimes advocated today, we run the risk of undermining the purpose of devolution. Differences in policies can develop, and we will not always agree with those differences. But if we constantly fight against the differences and produce ad hoc legislation if something comes up that we do not like—even if we do not like it with a considerable passion—we must do so with great care, because there is a principle of devolution that could be well undermined if we do that.

I will deal with that very point. I started by saying very much what the Minister has said in his last few words. I am very aware of that sensitivity. I will come back to this in a few minutes, but I am really grateful to the Minister for agreeing to take this away and reflect on it. When he expresses the view to his colleagues, I hope he will make it clear that this is an all-party, cross-bench, overwhelming, united, passionate and powerful message from the House of Lords. We have had people from all the parties, with lots of graduates from Scottish universities and other universities, all powerfully talking in one direction. That is a message to get over: we may be non-elected, but some of us have been elected in other places for long periods and have a lot of experience. I hope that message will get through.

I will make two points before I come to my last general point. First, on unintended consequences that arise, the noble Lord, Lord Forsyth, said this was a question of domicile, not nationality, which is absolutely right. Let me tell the Committee of one of the unintended consequences. Early last year, a Tory Peer—I will not name him—told me that he already knows of relatively well-off people who are buying up flats in Edinburgh to establish domicile there, so that they will not have to pay fees. That is the kind of thing that happens—and no, it was not the noble Lord, Lord Forsyth, saying that. Just as others have said, those who are relatively well off might pay the fees while others can get what I might call a domicile of convenience, so as to not pay them. They will eventually sell the flat, or whatever, and manage to reap some profit on that.

My second point is on what the noble Lord, Lord MacGregor, and, again, the noble Lord, Lord Forsyth, said about the Barnett formula. There is an amendment tabled for later in this Committee from my noble friend Lord Barnett himself—I call him Lord Formula—to have this revised. He has wanted that done for some time. We know that, per capita, it is exceptionally generous to Scotland. That is why the Scottish Government and the Scottish Parliament have been able not just to keep free higher education but free prescriptions and free personal care as well, all of which is building up tremendous resentment south of the border. There is a feeling here that the taxpayers south of the border are paying for all those better services. We heard that expressed in a previous debate in this House by Members from England, and it is a very strongly held feeling.

I urge the Minister to think about the consequences. There is of course another way of dealing with this, which is how Mike Russell, the Education Minister in Scotland, wants to deal with it. He wants to end the anomaly by stopping allowing European students in for free. He wants to go to Commissioner Vassiliou and say, “Let's have this changed so that we don’t have this obligation”. I do not think he will succeed in that—I think it will be impossible for him to succeed in that—but let us think of what he is trying to do. He is trying to make it financially difficult not just for English, Welsh and Northern Irish students but for European students to come to Scottish universities. My noble friend Lord O'Neill spoke about the Caledonian closet. Can your Lordships imagine Scottish universities reverting to what they were centuries ago when Glasgow, for example, had just students from around the Glasgow area? They would become narrow, introverted and isolationist universities and not in the old tradition of Scottish universities. I hope that we will not move in that direction.

The Minister was genuinely helpful and I hope that he will take it away, as he said, and discuss it. I listened very carefully to my noble friend Lord Browne. I think that he supported me in principle and that he will take it away to look at in more detail. I will help him in that task. The noble Lord, Lord Forsyth, asked the Minister to talk to the Prime Minister about it. Can I add the Deputy Prime Minister, just to make sure that it is all squared with both parts of the coalition? Will the Minister also talk to the Scottish Government about it and say that there is a strength of feeling, there are anomalies and there may be other ways around it? Will he ask them to consider the options for ending an unfair and discriminatory arrangement? We have some time until Report stage to do that. We are not going to finish this Committee stage until late in March so we will probably not get to Report until April.

I hope that the Minister will go away and talk sincerely to them. I know that he is busy with other things, but I hope that he can take some time out to talk to people about this anomaly, which clearly upsets so many people, not just in this Chamber but, far more importantly, outside it, and try to find a fair and equitable solution. On that basis, I shall withdraw the amendment.

My Lords, I thank the Minister for his response to the debate which was very generous, giving what a beating he was subject to during it. I always used to say of my late learned friend Nicky Fairbairn that if I were on a murder charge I would have him defend me. In the absence of Nicky, given that my noble and learned friend made a good job of a pretty limited set of arguments, that accolade may fall to him. We do not need to think about the future to see what is going to happen in the future. Only this week the UCAS figures were published. They show, surprise surprise, that more Scottish and European students, but fewer English students, are going to Scottish universities.

I feel a bit alarmed by the interests that were declared by my noble friends Lord MacGregor, a former Secretary of State for Education, and Lord Sanderson. I suppose I ought to declare a grandson, whom I am taking to the rugby on Saturday.; he will be supporting England and I will be supporting Scotland. He is only 13, but I would not like to think that his choice of university should be in any way limited by where he lives in the United Kingdom.

I do not normally disagree with my noble friend Lord Flight, but he has made some remarks about Irish universities. I ought to declare another interest: my youngest daughter went to Trinity College, Dublin. When she decided to go there, I thought that it would cost me an arm and a leg but it was free because there are no fees in Ireland. The consequence of that has been that a number of English students go to Trinity College, Dublin, but the university limits the number that it will accept and the result is that now you need to get four As, I think, in order to be able to go there. A distortion is being created not just in residency or wealth but also in the ability of the students. Only very able students from Europe are able to get into these universities.

I do not know whether or not it is legal to have a quota, but it is a remarkable argument. “Independence in Europe” was the slogan, and the whole idea of Europe—which, I confess, has been distorted—is that it is an open, single market where you have free movement of labour. That is the attractive part of the idea. It seems to be a complete distortion to argue that we are in favour of a single market throughout Europe but not within the United Kingdom. That argument will lead to fragmentation, which is precisely why Mr Salmond and his friends support it.

I will not detain the Committee; we will return to this. However, I want to pick up a couple of points that the Minister made. It is not right that an English student wanting to go to a Scottish university will to have to pay the same fees, because in Scotland we have four-year degrees. Personally, I would be very sad to see the end of the four-year degree system, but that may also be an unintended consequence of the distortion that has been created.

The Minister, speaking from the Dispatch Box, said something which absolutely horrified me, and which I hope will not be the general policy of the Government. He said that it would not be appropriate for him to comment from this Dispatch Box on the policies of the Scottish Government. Excuse me—this is part of the United Kingdom. The devolution Bill—the Scotland Bill—gave powers to the Scottish Parliament to exercise, but the powers to legislate on these matters remain with us. It is entirely appropriate for Ministers at the Dispatch Box to comment on the policies of the Scottish Executive—not Government, Scottish Executive—particularly if they affect the people of the rest of the United Kingdom. That is the kind of principle that I would expect to hear being enunciated by Mr Salmond and the separatists. It is the duty of this House to look at the consequences of the Scottish Executive’s policy and their impact not just on Scotland but on the rest of the United Kingdom. I hope that my noble friend will take this away and consider it very carefully indeed. There has not been a single speech in support of the current position. I believe that if we were to divide the Committee and people knew what they were voting for, there would be a jam in one of the Lobbies and the Minister would be searching for tellers. This matter needs to be looked at very carefully.

The noble Lord and I did not confer on this issue at all. We both tabled amendments because we are both aware of the feeling on this matter. I put down my amendment as an amendment of principle because it seems to me that the principle of devolution should be that policies which affect Scotland are made in Scotland and that the Scottish Parliament should be responsible for them, but that in so doing—this is an important principle—people in the rest of the United Kingdom should not be disadvantaged vis-à-vis other European Union citizens. If I had put down an amendment that said the Scottish Parliament should have the power to legislate in a way which discriminates against people in England, Northern Ireland and Wales but not other EU citizens, it would have been laughed out of court. That appears to be the position of the Government—that they are prepared to have a status quo of that kind.

I do not see this as being something that might have unintended consequences; it seems to me to be central to the whole philosophy of devolution. I find myself in a very surprising position in having to explain the philosophy of devolution as I have not been a strong supporter of it because I thought that it would lead to exactly the difficulties which we are now encountering. However, that is water under the bridge. If we are to maintain the United Kingdom, we have to make it work. Setting boundaries and a framework seems to me a more appropriate way of going forward than limiting the scope in particular areas of policy. But in whichever direction we go, we need to resolve this problem one way or the other. One way of dealing with it would be to say that the fees of those students who go from England to Scottish universities are picked up by the Department for Education and that the money is taken off the block grant to the Scottish Parliament. There is a whole range of ways of doing it. I think that would probably be the most provocative way of doing it. There are other ways of doing it but I urge my noble and learned friend and his colleagues to think carefully about the best way of doing it, perhaps as my noble friend Lord Maclennan said, in consultation with the Scottish Government. We cannot go on like this.

Amendment 22 withdrawn.

Amendments 23 and 24 not moved.

Amendment 25 had been retabled as Amendment 90A.

Amendment 26 had been retabled as Amendment 94A.

Amendment 26A

Moved by

26A: After Clause 14, insert the following new Clause—

“Rail passenger services

(1) In Part 2 of Schedule 5 to the 1998 Act, section E2 (rail transport) is amended as follows.

(2) In the exceptions insert—

“Services for the carriage of passengers by railway which start and finish in Scotland, including the power to decide who will run such services, the provisions of the Railways Act 1993 notwithstanding.”

(3) In the interpretation insert—

““Services for the carriage of passengers by railway” has the meaning given by section 82 of the Railways Act 1993.””

My Lords, I shall be very brief on this because I know that we have some of the most distinguished lawyers from Scotland waiting in the wings to talk about the Supreme Court. I am looking forward to hearing them do so.

This amendment was moved by my colleague Thomas Docherty in the Commons and has the support of the trade unions. It comprises a simple, technical new clause. Most people think that the Scottish Parliament already has the power to decide on the model for the ScotRail franchise, or for the franchise in Scotland. After all, it has to fund that franchise through its Ministers and it is responsible for the letting of the franchise. It is also responsible for funding the building of new railways in Scotland. We have successfully given greater powers to Scottish Ministers to do everything except determine the model of that franchise. I will not argue that a switch to a not-for-dividend model would necessarily be the best. The issue is that Scottish Ministers must let the franchise according to a privatised model. I am not saying that that is wrong; I am just saying that they should have freedom to decide what the model should be. I hope that noble Lords, particularly the Minister, will note that I am suggesting additional powers for Scottish Ministers and the Scottish Parliament, which would be welcome.

The Railways Act 2005 specifically bans a public body from acting as the franchise operator. Thereby, Scottish Ministers are banned from having a public body to deal with these matters. The only exception to that is if that body is the operator of last resort—as is now the case with the east coast main line. The proposed new clause would give Scottish Ministers the right not only to fund the railway, to let the franchise and to monitor its performance—all of which they have to do anyway—but to determine the shape of the model involved. This might well result in a privatised model, such as the one that exists on the ScotRail franchise, or perhaps a co-operative model. Ministers might ask Transport Scotland to run the franchise, or they might set up a new company called “Scottish Passenger Transport” to do so. It gives them that flexibility.

This proposal was not considered by the Calman commission because it involved a small technical change. I hope that the Minister will give serious consideration to the amendment. It was divided upon in the Commons because—I and Mr Docherty believe—it was misinterpreted as being a proposal to bring ScotRail into public ownership. That is certainly not the case. The only power that the amendment would give is freedom to Scottish Ministers to decide what the model should be, as well as all the other aspects.

My Lords, one of the curiosities of the current rail franchising process is that while the British Government and, presumably, the Scottish Government cannot offer to run the railways directly, there is no opposition to foreign national Governments—through, for example, Deutsche Bahn or SNCF—running franchises in the United Kingdom.

My Lords, I am grateful to my noble friend for tabling the amendment, which was debated in the other place. It seeks to rectify what appears to be an omission from the Scotland Act 1998 and subsequently the Railways Act 2005, which devolved significant powers over the ScotRail franchise, including its funding and licensing as well as responsibility for new rail lines for the network, yet neglected to devolve the power to determine the model of that franchise. Of course, it would not be appropriate to devolve responsibility for cross-border services, but that is not what the amendment seeks to address. It is clear that the amendment relates to services that begin and end in Scotland.

When this matter was debated in another place, as my noble friend indicated, we seemed to get side-tracked—if that is not an inappropriate way of putting it—down a spectre of renationalisation, which was not the purpose of the amendment. The Parliamentary Under-Secretary failed to address the central issue that the amendment poses regarding whether it is consistent with the spirit of the devolution settlement that the power to determine the nature of a discrete Scottish franchise, in relation to which the Scottish Government already have considerable responsibility, should be reserved.

I ask the noble and learned Lord the Minister to say what the position is in Wales and, more fundamentally, why the Government believe it is necessary and proper to retain powers to determine the franchise model of a self-contained Scottish rail service where the franchise is granted by the Scottish Government.

The noble Lord, Lord Foulkes, gave a fair analysis or description of what his amendment is intended to do. The noble and learned Lord, Lord Boyd, said that this might just be an oversight in the original arrangements. The noble Lord, Lord Foulkes, said that it was too small a matter for the Calman commission. I think that quite a significant change is proposed; it is not a small matter at all. The fact that I do not recall any representation on or consideration of it as part of the Calman commission may say something about whether there is widespread support for it.

The noble and learned Lord, Lord Boyd, asked why legislative competence has not gone hand-in-hand with executive competence. I think I am right to say that executive devolution was not present in the 1998 Act, but was subsequently negotiated between the then Scottish Executive—I think that Mr Henry McLeish took a role in that—and the Labour Government. The agreement reached was one of executive devolution. The Labour Government did not think it right at that stage to extend legislative devolution, and that continues to be the position of this Government. The Government are committed to maintaining a GB-wide national rail network which is publicly specified and funded in the public interest but which is provided by the private sector.

It is important to recognise the substantial executive devolved powers which Scottish Ministers have in relation to railways. They include giving general guidance to the Office of Rail Regulation, giving notice of their requirements for the outputs of the rail network in Scotland and the level of public funding available to the Office of Rail Regulation and publishing a Scottish railway strategy. They also have power to designate, let, fund, manage and enforce Scottish franchises and publish a statement of policy on franchising; to set fares; to publish a code of practice protecting the interests of disabled passengers; to appoint a member of the Passengers’ Council; to give financial assistance to any person for the purpose of developing Scottish railways; and to publish freight grants schemes for Scotland. Indeed, they have considerably more powers than that. Of course, the Scottish Executive have also taken considerable initiatives in building and constructing new railways—my noble friend Lord Mar and Kellie is probably a personal beneficiary of the railway from Stirling to Alloa—so substantial powers are already available.

However, as I said, we believe that devolved powers are best exercised within a coherent GB structure, as provided for under the Railways Acts 1993 and 2005. It is essential that the overall regime for the provision of rail passenger services and their regulation remains a reserved matter. It would not be sensible to run the railway in such a way that the Scottish Parliament through legislative devolution could overturn the framework that governs the operation of passenger services in Great Britain as a whole.

The noble and learned Lord raised the question of Wales. I will certainly confirm the position, but the fact that we wish to keep a GB structure means that there is no legislative devolution to the Welsh Assembly.

What I am proposing would not overturn the structure of the railways in Great Britain as a whole, as the Minister just said, but is merely filling a little gap in the model, the kind of franchise that can be agreed by the Scottish Executive and the Scottish Parliament. It is a small but important addition and it would not disturb the rest of the railways in the United Kingdom. I hope that he will give it some serious consideration.

I think it would, if we take it that GB includes Scotland. If Scotland could have a different model from that operating in the rest of Great Britain, that would amount to a material change. We believe that the right balance is in place. It was a balance struck not by this Administration but by the previous one, and not just as part of the original legislation but as one for which specific consideration was given for a Section 30 order. The arrangement struck the right balance and I urge the noble Lord to withdraw his amendment.

On every previous occasion, I have said that I am really grateful to the Minister for listening carefully to the arguments and being sympathetic, accepting some of the arguments and going away and looking at the amendment. In this case, I am disappointed. I could have gone on at much greater length arguing the case, but I have some concern for my noble friends the eminent lawyers from Scotland and we need to get on to the issue of the Supreme Court. However, this is an important issue. The trade unions feel strongly about it. I know that the Scottish Government would welcome this change. It seemed to have some support in the House of Commons, and would be a coherent arrangement.

The noble Earl, Lord Mar and Kellie, is a very quietly spoken Member of this House and always speaks exceptionally briefly, but in this case his point was really quite a remarkable Exocet. In his brilliant intervention, he said that whereas there could be no public ownership so far as Britain was concerned, in relation to United Kingdom interests, French, German or Dutch railways—all three are publicly owned—would have no problem at all in buying into and taking over this franchise. That is a serious anomaly. It might be best to have some kind of United Kingdom or Scottish structure different from the current ScotRail structure to deal with it. I hope that the Minister will give further consideration to this between now and Report so that we can avoid a rather longer debate then. Nevertheless, I beg leave to withdraw the amendment.

Amendment 26A withdrawn.

Amendment 26B

Moved by

26B: After Clause 14, insert the following new Clause—

“Nuclear Power

In Part 2 of Schedule 5 to the 1998 Act, under head D4 (nuclear energy) omit—“ExceptionsThe subject-matter of—(a) Part I of the Environmental Protection Act 1990, and(b) the Radioactive Substances Act 1993.””

My Lords, I hope that we can get through this in under 12 minutes and break the Foulkes record. Right at the beginning, I will come clean: this is purely a probing amendment, which means we can totally disregard the detail. I can only apologise if some poor civil servant somewhere has spent hours drafting notes on Part 1 of the Environmental Protection Act 1990 and the Radioactive Substances Act 1993. I am sorry, but that was my way of getting the issue on to the agenda.

Quite simply, the issue is my concern whether, at a time when energy security is one of the greatest challenges that we face, we have the appropriate legislative framework to enable the implementation of a strategic British energy policy. It would be totally inadequate to try to deal with the issue of energy security by fragmenting policy so that you have English, Scottish and Welsh energy policies. The task that we face is too great for that sort of small, narrow-minded approach.

Schedule 5 to the 1998 Act reserved virtually all areas of energy policy: electricity, oil and gas, coal and nuclear energy; there are a number of exceptions and they are in the original Act. There has also been a degree of executive devolution since then. The reservation of energy was done quite deliberately in 1998, with the view that strategic energy policy was best devised and implemented at a British level. The point that I want to explore with the Minister is whether we are still capable of implementing a strategic British energy policy. This is where I use the peg of nuclear: we have to take account of the specific contribution that nuclear power can play. We have heard from the Scottish Government that they will not be allowed to build new nuclear power stations in Scotland, and that is a major factor in the debate on energy policy. Is the Minister satisfied that the Scottish Parliament and Scottish Ministers have powers which would enable them to prevent the construction of nuclear power stations in Scotland and, if that is the case, is it really possible or credible to think in terms of British energy policy?

My Lords, I support the thoughts lying behind this amendment. When approached recently by an American company which indicated the desire to establish a small nuclear research plant in Scotland to develop nuclear power on a small scale, I was rather shocked to be advised by the Department of Energy and Climate Change that, because of the planned powers for the Scottish Parliament and the declared expression of intent to allow no nuclear developments in Scotland, this approach, which would have brought significant employment to Scotland, was to be denied.

I know that there are different attitudes to nuclear power in different parts of Scotland. I know, for example, that my noble and learned friend’s former constituents were always a little unhappy about what was happening across the Pentland Firth at Dounreay. Equally, my noble and learned friend will recall the satisfaction of my former constituents that nuclear power was being developed and researched on the north coast of Britain as part of a strategic policy on energy development. It is rather unfortunate, to say the least, that the good will of those in that particular area towards nuclear power is to be overlooked and that the possibility of replacement in the research field is to be denied when the Dounreay nuclear establishment is finally decommissioned.

My comments, like those of the noble Lord, Lord Sewel, are probing. It appears that the original intentions of devolution in respect to energy policy have been effectively stymied by matters which will not necessarily proceed to be related directly to the strategic questions. Having policies for different parts of the United Kingdom in relation to energy, which transcends even existing national frontiers, is almost certainly unwise. Indeed, I think that when the Prime Minister came back from the European Council the other day, he talked about enlarging the scope of the European Union in respect of energy policy. Therefore, we seem to have two standards here—one relating to how we deal with Europe and one relating to how we deal with internal matters—and I think that these anomalies need to be sorted out. However, as I said, this is merely a probing inquiry.

I should like to follow my colleagues on this issue because for some time I was chairman of the Nuclear Industry Association. My connection with that organisation has now been terminated, so I do not have to declare an interest but I still have great affection and respect for the industry.

It is certainly fair to say that an amendment of this kind has to be probing in character because, to be realistic, we do not really want to face the prospect of a planning challenge at this time on nuclear matters. I do not think it would be reasonable to say that there is fantastic demand in Scotland for Hunterston C and D being constructed at this time. However, by 2015 or 2016, we will have the large plant directive in place and, therefore, Cockenzie power station, which is relative small, will probably be closed and we will also have the prospect of Longannet, which is the massive linchpin of Scottish power generation, operating under severe constraints as a consequence of the large plant directive.

Torness will probably carry on until 2025, given likely extensions if the safety codes are met. Within the next eight years investment decisions will have to be taken as far as replacement base load generation is concerned. It ought to be made as clear as possible what restraints there are on the possibility of the planning powers of the Scottish devolved Parliament being constrained or changed or being ignored, if that were possible. If energy is a reserved power, does the power to frustrate through the planning process necessarily enable a Scottish Parliament to deny the people of Scotland and the United Kingdom the contribution that a power station on the scale of Torness could offer?

It is suggested that the nuclear industry is somehow alien to Scotland, that we do not have anything to do with it, and the plutonophobes, in their separatist windmills, forget that probably as much credit has to go to James Clerk Maxwell as anyone for the development of nuclear power. Through companies like the Weir Group and through a variety of other groups like Renfrew-based Doosan Babcock, the nuclear power industry is very vibrant and strong in a lot of areas of Scotland. Although it does not enjoy the weekend press releases that we get for the somewhat immature, renewable technologies—immature in the sense that they are barely proven and barely out of the laboratory—in its hands will lie the economic success of Scotland.

It is true that we will still have gas-fired power stations, but it is quite likely that, if the carbon capture and storage technologies are developed, they will try to apply them to that form of generation as well. If that happens, it will severely restrict even the capability of the gas-fired power stations to make a proper contribution to our energy needs. I make the point that, although today it is not an important issue, we still have some time to go before a Torness replacement has to be considered. There will be uncertainties about the continuing generating capability of our main stations by 2015. Not all of us are quite as optimistic about the contribution, 24/7, base load in character, that can be made at present by renewable power stations.

Therefore, it is important that an issue of this nature is afforded some clarity. That is why I am very grateful to my noble friend Lord Sewel for raising it. We are not asking for the earth to move or anything like that; we are merely asking for some clarity from the Advocate-General on this question.

My Lords, is this not a matter of Scottish democracy? I suggest that in 2016, the Labour Party in Scotland needs to come forward—providing it is prepared to put up with the description of being nuclear Labour—with the type of policy that will presumably be substantially different from the policy continuing to be put out by the current Scottish Government.

My Lords, it is a pleasure to follow the noble Earl, Lord Mar and Kellie, who asked a legitimate question. If there are advocates for the policy, they should be heard in Scotland and the Scottish people should make their decision. Nobody could criticise my noble friend Lord O'Neill of Clackmannan for being a shrinking violet in this regard. He speaks with authority and obvious knowledge about the benefits of nuclear energy and the role that it should play in the mixed energy economy of Great Britain. I accept the noble Earl's challenge and thank my noble friend Lord Sewel for giving me the opportunity to outline, in a couple of minutes, some of the basic points about a single GB energy market in which nuclear energy will play a part.

The existence of a single GB energy market is manifestly to the benefit of Scotland and to the rest of our island. It allows the sharing of resources, risks and rewards. The development of renewable energy capacity in Scotland depends largely on substantial support from that market. As noble Lords said, energy is in the main a reserved matter under the Scotland Act. However, through the exercise of devolved power over the planning system, the current Scottish Government are able to prevent new nuclear plants being built in Scotland. They have said that it is a matter of ideology and that that is what they will do.

As noble Lords heard, Scotland produces a not insignificant proportion of its electricity through the nuclear power stations at Hunterston and Torness. I have noted in my short time in your Lordships' House the development of the concept of declaring an interest. I do not declare this as an interest, but it may be of interest to Members of the House that as a student I was involved, as a McAlpine fusilier, in building the Hunterston B power station. I remember being handsomely rewarded for my work and benefiting from the great advantage that in those days, students did not pay any tax on a substantial part of their income. Therefore, in a small way I contributed to the energy security of our country. Since Hunterston is a nuclear power station, it will be a lasting legacy—although perhaps not a legacy of which everyone would be proud.

At times of peak demand, Scotland, which produces a significant amount of energy, imports electricity generated by nuclear power stations in England. Under a separate Scottish energy policy—God forbid that there should ever be one—that would have to continue, in order to maintain base load power and to prevent the lights going out in Scotland. However, both Hunterston and Torness will come to the end of their operating life in the next few years, as we heard—although one or other may continue, depending on the safety case. The position of the SNP Scottish Government on nuclear energy appears contradictory. They seem happy to import the energy from England, but impose a policy of no nuclear energy in Scotland on ideological grounds. This does not seem to be a point of principle or ideology. It is a political issue in Scotland that works in their favour in the mean time, but will not in the longer term.

The noble and learned Lord the Minister is not here to answer for the Scottish Government, and I do not ask him to. However, perhaps in his closing remarks he will indicate what he understands the position to be in relation to the extension of the life of nuclear plants currently operating in Scotland. I have reason to believe that there will be a positive response from the Scottish Government to the life extension of these stations, for the obvious practical reason that there is no substitute for them in the offing. If that is the case, where does the ideology lie? Where is the point of principle if the life of these plants can be extended but new ones cannot be built?

I am conscious of the time, and I do not want to detain the Committee unnecessarily. I have made the points I want to make. I am grateful to my noble friend Lord Sewel, who has provided the Committee with a good opportunity to remind itself of the one irrefutable fact: the benefit of a single GB energy market. The whole of Britain, including Scotland, benefits from this market. It makes no sense to break it up, and we should continue to try to protect that market.

My Lords, I thank the noble Lord, Lord Sewel, for introducing this issue. I take the point he made that the pegs on which he hangs it are perhaps not details that he wishes to address. Rather he wishes to open up the wider issue of energy policy and, more specifically, nuclear energy policy with regard to the devolution settlement.

That said, it is important to note that decommissioning gives rise to important issues regarding substantial amounts of nuclear waste. We do well to remember that decommissioning the civil nuclear legacy and managing the radioactive waste produced as a result is a joint project across the UK, and the Nuclear Decommissioning Authority reports to both Scottish and UK Ministers, although it is funded centrally by the UK Government through DECC. There have been good working relationships on that point.

The noble Lord, Lord Sewel, raised the more general question about energy policy. The balance that has been struck, with the United Kingdom in the driving seat with regard to UK energy policy, is one that we endorse. The Calman commission received a number of representations on these issues and indicated that it believed that a UK-wide approach is essential to ensure a continuing national supply, that international targets and obligations are met and that consumers have access to a competitive and modern energy market. It concluded that the current arrangements remain appropriate and provide a balance between powers appropriately exercised at devolved and reserved levels, although it encouraged proper engagement between the two Governments.

The UK nuclear energy policy has been set out in the national policy statement EN6, which was ratified in 2011. I am grateful that my noble friend the Minister at DECC is in his place. He will, no doubt, correct me if I get any of this wrong. This national policy statement provides for enough sites across the United Kingdom for a significant build programme going forward for new nuclear sites. I do not know the detail of the extension times for currently operational nuclear power stations. Scotland currently has five nuclear power stations, three of which are in the process of being decommissioned—Hunterston A, Dounreay and Chapelcross—and two are still operational—Hunterston B and Torness. There is also an MoD site, as my noble friend Lord Maclennan will know, the Vulcan Naval Reactor Test Establishment adjacent to Dounreay, which ran a test reactor for the nuclear submarine programme. I will get confirmation to the noble Lord, Lord Browne, about the remaining lifetime of those plants.

I think it is fair to say that the noble Lord perceives that there may be some inconsistency in the view taken by the Scottish Government with regard to extension as opposed to their stated view with regard to new build.

I may be of some small assistance here. It is my understanding that life extension would be the responsibility of the Nuclear Installations Inspectorate. A safety case has to be advanced. Were that to have construction implications that required planning, that might cause a wee bit of a problem, but the basic case has to be satisfactory in the eyes of the Nuclear Installations Inspectorate.

I am sure the noble Lord is absolutely right. At the core of this—maybe not the right word—at the heart of it is the safety case, which would be determined by the independent Nuclear Installations Inspectorate. The noble Lord raised the point, which we will come on to, about other issues leading to issues about planning. It is not only planning because in 1999 there was executive devolution that transferred to Scottish Ministers powers under Section 36 of the Electricity Act with regard to giving permission for power stations in excess of 50 megawatts, and that would include any future nuclear power stations.

I perhaps interpret the concerns to include how that would operate. To be fair, more generally in planning it probably makes sense to have planning powers. In the debate on the then Scotland Bill, the noble Lord, Lord Sewel, said that,

“an Act of the Scottish parliament containing provisions about water pollution from coal-mines or dust from open-cast coal-mining would affect the reserved matter of coal-mining. If the courts were to apply a literal approach, they could hold that these provisions related to the reserved matter and would therefore be beyond the legislative competence of the Scottish parliament. This would make a nonsense of the devolution of pollution control”.—[Official Report, 21/7/98; col. 819.]

There is some good sense that there should be planning considerations.

I should also perhaps draw to the attention of the Committee a decision in the Outer House, Court of Session, last year by Lord McEwan in a petition of Dulce Packard and others for judicial review. He said:

“The best guidance is the Lewis case (the mixed redevelopment at Redcar on Teesside). It is quite clear from the case that the Minister’s position is quite different from someone holding a judicial or quasi judicial office. All the Minister has to do is to consider genuinely the inquiry report and the objections”.

Clearly, we have not yet had any application. But he went on to quote from the Lewis case and the judgment of Lord Justice Rix.

“So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question”.

It would be wrong to speculate what would happen if any company applied for planning permission and was turned down. It is a high test, which I think Lord McEwan made clear. Nevertheless, he went on to say that the,

“test is applicable, the fair minded and informed observer must be taken to appreciate that predisposition is not predetermination”.

But evidence of predetermination might be relevant.

I had better stop there because one never knows when one might find oneself having to go down that path. In saying this, I hope I can give some assurance that the Government believe that the balance in the Scotland Act is right. As I have indicated, the national policy statement, which was ratified last year, provides for enough sites across the United Kingdom for a sufficient build programme going forward for nuclear sites. With these remarks, I hope the noble Lord feels that he has probed successfully. I am afraid that we have taken twice 12 minutes, but it has been a useful debate and I hope that he will withdraw his amendment.

I thank all noble Lords who have contributed. In reply to a point made earlier, I am not advocating a nuclear power policy for Scotland. I am advocating a British energy policy to deal with the issue of energy security. It cannot be done at the level of the individual component parts of Great Britain. We need to work together to have a policy covering the whole country.

I think that we are very reluctant to go too far on the planning point. But the noble and learned Lord will remember that the vires test in the 1998 Bill that left the House of Commons was not the same as the vires test that became the Act. Let me put it this way: that change was in part as a result of discussions that were very close to the type of discussion that we have had today. I beg leave to withdraw the amendment.

Amendment 26B withdrawn.

Clause 15 : The Scottish Government

Amendments 27 to 29 not moved.

Amendments 30 to 39 had been withdrawn from the Marshalled List.

Clause 15 agreed.

Clause 16 agreed.

Clause 17 : The Lord Advocate: Convention rights and Community law

Debate on whether Clause 17 should stand part of the Bill.

My Lords, this debate is scheduled to finish at 7 pm, which gives us slightly over two hours. That is unfortunate because on a Thursday afternoon, particularly when the House does not sit on the Friday, there are few Scots to be found after this hour, and I fear that even some of those who are smiling at me now will shortly depart for trains and planes to take them north to what no doubt is important business. I have tried to make my contribution by withdrawing 12 of the amendments I had down on the Marshalled List before the debate today, but it is a pity that we lost an hour at the beginning of the day to the debate occasioned by the Leader of the House having to deal with issues of privilege in another place.

I am quite certain that we are all agreed that Clause 17 will have to go, so I need not spend too much time on the detail, but I want to say something about the background. Unfortunately, because of the grouping of the amendments, for what I understand are good technical reasons, we have to deal with a large number of quite different matters all at the same time, so I am afraid that I shall have to rise to my feet more than once in order to make separate submissions in relation to several different matters.

Clause 17 was added in another place at the Report stage. No explanation about it was given at that point, although the Minister and the Opposition said a few words a little later at Third Reading. The history of the matter is this. The Scottish judiciary first raised issues in relation to the exercise by the Supreme Court of its jurisdiction, which had been conferred in a late provision that was added to the Scotland Act 1998. Calman did not deal with it, but the Advocate-General for Scotland wisely appointed an expert committee under Sir David Edward and others, including the noble and learned Lord, Lord Boyd, to deal with the matter. The committee went on to produce an excellent report so far as it went—I believe that we came to a logically better conclusion than can be shown in Clause 17, and I think the Minister accepts at least some of the points that have been made in relation to that.

The Report stage to which I have referred was taken on 22 June or thereabouts. The first report of the review group, which I had the honour to chair, was published on 24 June, so at that point we had had no opportunity to comment on the clause. I had a group of very distinguished people under my chairmanship: you could not have a more learned lawyer in the law in Scotland today than Sir Gerald Gordon, who is the finest scholar of Scots law probably for centuries; Charles Stoddart has massive experience as an author and as director of judicial training in Scotland; and Professor Neil Walker has an international reputation on constitutional law and practice. Perhaps I may say for clarification that when the First Minister asked me to chair the group, he started to say that he would give me the names of the people who would join it. I said, “No, I will give you the names”, and I proceeded to give him these names apart from that of Professor Walker, whom I did not know. The First Minister said, “May I suggest Professor Walker?” and I said, “Give me 24 hours and I will say yes or no”. I looked into Professor Walker’s background and consulted my colleagues, and we decided that he would be a valuable member of the group, which indeed he proved to be.

We had no axe to grind whatever. We almost resigned over the appalling remarks made by the First Minister and the Secretary for Justice about the Supreme Court justices at the time, but we decided that it was our duty to do our best because, while that row would pass, these provisions might last for a very long time.

We had only three weeks to produce our first report, and at that stage we could not consult widely. However, we had until mid-September to produce our second report and we then did consult widely. We put the tentative conclusions we had reached in the first report out to consultation and we met with many parties. The report is now available on the Government website, and it makes it clear that many people responded to us. A number of interviews are reproduced. I personally met with a number of senior judges in Scotland, and on more than one occasion with the Advocate-General. He was always courteous enough to listen with great care to what we had to say and, indeed, to respond positively to a number of things.

In short—for the moment, I am touching only the high spots—we agreed that it was right and proper to retain the jurisdiction of the Supreme Court in relation to human rights issues hitherto governed by the Human Rights Act. I think that we are all agreed about that and I do not know of anyone in this Committee who thinks differently.

We also agreed with Sir David Edward’s group—I think that the Government have accepted this—that we should define and restrict the jurisdiction of the Supreme Court in Scottish criminal cases to determining a human rights issue and then remitting the matter to the Scottish High Court to deal with the consequences. I think that we are also agreed that vires issues, about the competence of Scottish Ministers and the Scottish Parliament, should be dealt with as devolution issues. We are particularly pleased that the Government have recognised that the Supreme Court will remit to the High Court. That means that the High Court is essentially to retain its centuries’ old role as the apex or final court in regard to Scottish criminal cases.

There are a number of additional proposals which I shall touch on but deal with separately slightly later on in order to avoid speaking for a very long time. One relates to the certification of cases for the Supreme Court; in other words, to give the High Court a power to give or withhold a certificate, that certificate being a prerequisite before the Supreme Court can consider an appeal in a criminal case.

We have also to look at the timescale which is allowed for leave to appeal against a decision of the High Court. We say that it should normally be at the end of the case but that there may be exceptions. I shall have to look at that in a little more detail later on. We were also anxious that the Lord Advocate and the Advocate-General for Scotland should have certain rights in getting cases before the Supreme Court, perhaps even before the end of the case.

In particular, we did something which was not entirely popular with the Scottish Government—in fact, we were not very popular when we said that the jurisdiction of the Supreme Court should be retained—which was to advise that Clause 17 was far too restrictive, as had been Section 57 of the Scotland Act, in that it related only to acts or failures to act of the Lord Advocate. We advocated replacing that with a right of the High Court to consider breaches or possible breaches of the Human Rights Act by any public authority. That could include even a criminal prosecution taken by a person other than the Lord Advocate. In the famous Sweeney case, which was prosecuted essentially by the victim of the rape, after the Lord Advocate—who was at that point the noble and learned Lord, Lord Mackay of Clashfern—stood aside, I am not entirely sure that the victim in the Sweeney case would have been regarded as a public authority for those purposes. I do not know, and I do not ask anyone to express an opinion on that matter, particularly at this late hour of the afternoon.

Clause 17, inspired by Sir David Edward’s group’s report, went some of the way and we believe that we have just followed it to its logical and proper conclusions. We have no criticism of what Sir David and his colleagues said in that report. I drafted my amendments in September and October 2010. I withheld them for a long time in the hope that the Government would come forward with their amendments, but when they did not do so, I put mine in.

Having attended the meeting of the Scottish Parliament committee considering the Scotland Bill, I then heard the Lord Advocate accept all the conclusions of the report of the group which I had the honour to chair. The Scottish Government’s Bill team prepared a number of amendments. I felt that they ought to be before this House. But I want to make it clear that although I support those amendments, I do so because those amendments were drafted by technical people to give effect to the proposals of the review group that I chaired. I am not the spokesman for the Lord Advocate and still less a spokesman for the Scottish Government or the First Minister.

However, the result was that when the Advocate-General for Scotland, the noble and learned Lord who is here today, finally lodged his amendments towards the end of December just before Christmas, many of mine were rendered largely superfluous. So I decided that they should go and we should instead adopt an idea that was suggested to me by the Lord Advocate’s Bill team; namely that we should simply put my proposals into Amendments 71 and 72 in the name of the noble and learned Lord.

I will say something about the underlying principles. First, I quote and endorse what was said in the House of Commons at Third Reading, to which reference has been made, by the Secretary of State for Scotland. He said in the context of what was then Clause 13 and is now Clause 17:

“I regret the tone of some of the remarks made against judges in the Supreme Court in recent weeks”.

We all agree with that. He continued:

“I welcome the broad support for the idea that people in all parts of the United Kingdom should enjoy the same rights under the courts”.—[Official Report, Commons 21/6/11; cols. 282-283.]

That is important because it has a strong bearing on the matter of certification.

Following that point, in the debate on 21 June, I find that Ann McKechin, a spokesman for the Labour opposition there, spent some time discussing the Supreme Court new clauses. She said:

“I would like to put on the record what principles should be followed in referring cases to the Supreme Court”.

She continued:

“We believe that no one living in Scotland should have less access to the enforcement of their human rights than any other citizen living elsewhere in the UK”.

Finally, she said that,

“it is important that people in Scotland should receive the same level of protection as everyone else … It is important to have consistency of judgment, which is one of the parts of our judicial process”.—[Official Report, Commons 21/6/11; cols. 285-288.]

That is an important principle that underlines what we said—that we wanted consistency throughout the United Kingdom. We did not seek and we do not advocate uniformity. There has never been uniformity in the criminal process between the courts in Scotland and in England. They have gone different ways, with I hope no harm to the concept of providing a fair trial. We must have consistent interpretation of the human rights provisions, but not necessarily uniformity in how the law is applied in particular jurisdictions where we have quite different systems.

In relation to the matters of principle, I have suggested the correct thing to do. I am not quite sure where the suggestion originally came from but I certainly endorse it. When we make amendments in relation to criminal appeals, those amendments should not go into the Scotland Act 1998 but should go into the Criminal Procedure (Scotland) Act 1995. That is the principle adopted by the Advocate-General and I congratulate him on doing that because it is the right place. In a sense, the issue of criminal appeals in relation to Scottish criminal trials and human rights belongs properly either in the Human Rights Act or alternatively in the Criminal Procedure (Scotland) Act 1995, which deals with appeals. That error, which was made in 1998 in the Scotland Act, is now to be remedied.

It is important to note as a matter of principle that the functions of the Lord Advocate were retained functions, not devolved functions. That was one of the flaws that David Edward so eloquently exposed in his report, which showed that it was a mistake to treat the Lord Advocate’s acts as devolution issues. The High Court of Justiciary was not in any sense devolved at all.

The other matter that I want to draw attention to as a matter of principle is that the only recent relevant change affecting the High Court of Justiciary over criminal appeals is the change made when a new obligation to respect the Human Rights Act and the convention rights contained therein was created in the Human Rights Act 1998; no other change was made in relation to the High Court of Justiciary. It was just an extension of a matter that they had to consider and, in respect of which, it was felt there should be an appeal to the United Kingdom court, for reasons that I support and we explained very fully in the report that I had the honour to act as chair for.

One other point of important principle—and I owe a great debt to Professor Neil Walker in this regard, who made the point very clear for us—is that when any supreme or appeal court sits, it should, so far as possible, be exercising different functions from the court below. It may examine the same question of law and have to revise the question, but, on the whole, you do not have different levels of courts in order to examine the same question. The higher court should be dealing with different questions from those dealt with by the court below.

Unfortunately, we have a grouping with a vast number of amendments, including the particular matters I have dealt with. In the mean time, in order to get Clause 17 out of the way and be sure that we are going ahead with Amendments 71 to 72K, I should sit down for the moment but come back to deal in detail with the particular matters that arise separately. I ask that this clause should not stand part.

For the convenience of the Committee, I will just explain why we are supporting the proposal that the clause should not stand part and speak to the amendments that are in my name, to which the noble and learned Lord, Lord McCluskey, has proposed his own amendments. That might help some of the structure of the debate.

I start by thanking the noble and learned Lord for the way he introduced this issue and gave a very fair explanation as to how we got here via the judicial representations to the Calman commission, the expert group that I set up under the chairmanship of Sir David Edward, and the subsequent group, to which the First Minister appointed the noble and learned Lord to look at this issue. It is perhaps rare that legal issues get quite as much public prominence as these have had, but there are important issues here. The purpose of Clause 17 was to provide that questions as to whether acts of the Lord Advocate, acting as the head of the criminal prosecution service, were compatible with ECHR or EU law should not be devolution issues under the 1998 Act. Clause 17 provided a separate statutory right of appeal to the Supreme Court for these issues. Under the current Scotland Act, acts of the Lord Advocate acting as the head of the criminal prosecution system in Scotland that are not compatible with ECHR or EU law would be ultra vires by virtue of Section 57(2) of the Scotland Act 1998.

In order to take account of some of the recommendations from the committee chaired by the noble and learned Lord, we thought it better to seek to delete Clause 17 and bring forward new clauses, otherwise it was going to get very difficult and convoluted indeed. In doing so, as the noble and learned Lord pointed out, we have in fact taken on board the point about the Criminal Procedure (Scotland) Act 1995. Many of the things we are doing seek to amend that.

The debate on Clause 17 and the issues that it raises has come a long way. Certainly during the summer there was a lot of heat, if not necessarily light, about the role of the Supreme Court in these matters. The finding in one of the main recommendations of the group under the noble and learned Lord, Lord McCluskey, that it was right and proper to retain appeal to the Supreme Court, allowed us to try to find a way forward that could command as much consensus as possible. There has been progress, and that progress and the fact that we have reached so many areas of agreement has been achieved by open dialogue, proper consultation and mature consideration on all sides. It is certainly in that spirit that I will consider the arguments that are made by noble Lords contributing to the debate this afternoon.

Amendments 71 and 72 are the Government’s response following careful consideration of the recommendations made by the review group led by the noble and learned Lord, Lord McCluskey, as well as taking on board the views of other noble Lords and having regard to the comments and representations from the Lord President of the Court of Session and the Scottish Government. As most people in the Committee are aware, the Lord President has written to the Clerk of the Parliaments expressing his views on these matters. We ought to be aware of that. He has exercised his powers under the Constitutional Reform Act 2005 to make representations regarding his concerns about Clause 17. I have considered his letter carefully, and Amendments 71 and 72 address one issue that he raised relating to extending the right of appeal so that it does not just apply in relation to acts of the Lord Advocate. He also raised the question of certification, which is clearly an important issue which I will address later.

I am persuaded that the right of appeal to the Supreme Court in criminal proceedings should extend to questions as to whether acts of public authorities are compatible with the ECHR and European law and should not just be limited to certain acts of the Lord Advocate. The definition of “compatibility issue” inserted by Amendment 71 achieves this change and provides that a “compatibility issue” is a question as to whether an act of a public authority is made unlawful by virtue of Section 6(1) of the Human Rights Act 1998 or is incompatible with European Union law. A compatibility issue can be raised only in criminal proceedings. The noble and learned Lord in his review group report—and I think that I recall this from his evidence to the Scottish Parliament Committee—referred to making a number of issues justiciable under the present arrangements under Section 57(2). There have been some quite contorted views as to what the Lord Advocate does or does not do to allow the matter to be considered. Taking forward and reflecting in our amendment the recommendation of the review group allows a much more sensible and straightforward way to deal with these issues.

I am not minded to accept Amendment 71B proposed by the noble and learned Lord, Lord McCluskey, that the new appeal should extend to questions as to whether an Act of the Scottish Parliament is compatible with the ECHR or European law. I may have misheard him, but I thought he said as much himself in his remarks. Questions as to whether an Act of the Scottish Parliament is within the legislative competence of the Parliament should continue to be devolution issues as they relate to the exercise of the Parliament’s powers. They are quite properly devolution issues. A question that concerns the compatibility of an ASP with the ECHR or European law rather than a question of an interpretation of a reserved matter should not result in the application of a different appeal mechanism. In addition, it would mean that if the amendment was carried, if someone wished to argue that an Act of the Scottish Parliament was incompatible with the European Convention on Human Rights and also that it was not law under Section 29, as it also related to a reserved matter, they would need to use a new appeal route in relation to the European Convention of Human Rights issue as well as using the existing devolution issues appeal route. That seems unduly cumbersome and a recipe for delay.

The review group led by the noble and learned Lord made a persuasive case that when the Supreme Court considers a compatibility issue, it should not consider whether a miscarriage of justice arose as a result of the compatibility issue. Instead, the Supreme Court should be required to determine a compatibility issue and then remit the matter to the High Court of Justiciary in Scotland. Amendment 72 provides that the new appeal right to the Supreme Court can apply only to the determination of a compatibility issue. The Supreme Court can reformulate the question it is considering, but only for the purpose of determining the compatibility issue. Amendment 72 clearly provides that the powers of the Supreme Court can be exercised only to determine the compatibility issue, and once the court has done this it must remit the proceedings to the High Court of Justiciary.

There are a number of points in respect of which I have not yet been persuaded by arguments put forward by the noble and learned Lord’s review group, or by the Lord President of the Court of Session and others. Principally, I have yet to be persuaded that it is necessary to provide that a compatibility issue can be appealed only to the Supreme Court if the High Court has certified that it raises a point of general public importance. I respect the arguments that are put on the other side. It is a very well balanced argument; inevitably, when lawyers are involved there are compelling arguments on both sides. Nevertheless, we believe that the Supreme Court has a role as a constitutional court, and that the amendments which the Government are putting forward seek to provide a role for the Supreme Court to deal with certain constitutional issues that arise in criminal cases.

The High Court of Justiciary, sitting as an appeal court, is indeed the final court of appeal. It is the apex court in Scotland in respect of Scottish criminal cases. The exceptions that exist relate to devolution issues, and will exist in relation to compatibility issues if the House agrees these amendments. They will arise because of the constitutional issues raised by the European Convention on Human Rights and European Union law issues, and the need for those issues to be dealt with consistently—a word which I think the noble and learned Lord used, and which I would agree with—throughout the United Kingdom.

The system of certification in England and Wales arises due to the different nature of the Supreme Court in respect of criminal cases in England and Wales. In England and Wales, there is a right to appeal in criminal proceedings to the Supreme Court in respect of all issues, including substantive criminal law and criminal procedure, not just those relating to compatibility with the European Convention on Human Rights and European Union law. In addition, the requirement for certification in England and Wales was introduced to prevent the House of Lords, as it was then the court dealing with these issues, being flooded with criminal appeals. The then Lord Chancellor, Viscount Kilmuir, set out the background to the introduction of certification in England and Wales when the Administration of Justice Bill was being introduced in this House in March 1960. On that occasion, he said:

“If there is to be a right of appeal from the Divisional Court, the question arises: what test is to be applied? For, clearly, some limitation must be imposed on the right of appeal if the House of Lords is not to be flooded with criminal appeals to an unmanageable extent. Then again, whatever test is applied, it ought to be the same for appeals from the Court of Criminal Appeal as from the Divisional Court”—[Official Report, 24/3/60; cols. 249-250.]

This view was supported in the consultation which I undertook in February and March last year. The noble and learned Lord, Lord Cullen of Whitekirk, is here. As a former Lord President of the Court of Session, in his response to the consultation of the review group chaired by the noble and learned Lord, Lord McCluskey, he said:

“In any event the fact that in English criminal cases a certificate is necessary seems to me to be beside the point. It applies to the majority of cases, and is not directed to cases of alleged contravention of Convention rights”,

or European Union law.

I am not persuaded that certification by the High Court is necessary to ensure that the Supreme Court considers only appropriate cases or to prevent it being swamped with cases. The Supreme Court has put a very helpful note on its website, which is also available in your Lordships' Library, entitled Scottish Criminal Cases and the UK Supreme Court. It includes details of the number of Scottish criminal cases that have been dealt with by the Supreme Court. The note sets out that since the Supreme Court was established, just over two years ago, it has dealt with 31 applications to appeal from Scottish criminal cases. In seven the High Court had granted leave to appeal, and of the remaining cases the Supreme Court granted permission to appeal on four occasions and refused it on 20 occasions. I understand that in the four cases in which permission was granted by the Supreme Court, two were upheld and two were dismissed. In addition, a number of cases have been referred to the Supreme Court for consideration, so it cannot be said that the number of Scottish cases being considered by the Supreme Court is in any way a torrent of cases.

Moreover, the House of Lords Constitution Committee, when considering this Bill—including Clause 17—noted that the review group led by the noble and learned Lord, Lord McCluskey, had recommended certification but considered that,

“notwithstanding the legal and political controversy, there is no constitutional objection to clause 17”.

I accept that there does not appear to be a consensus in favour of certification. I recognise and respect that the Lord President agrees with the amendments tabled by the noble and learned Lord that certification is needed. The arguments against certification are also supported by a number of individuals including Sir David Edwards and most of the members of the original group that was set up. The Law Society of Scotland would prefer that the status quo remained at present but indicates that on the issue of certification it is not persuaded. The Faculty of Advocates, JUSTICE and the Scottish Human Rights Commission are also not persuaded.

The reasons give by these bodies and individuals have varied. In response to the consultation that I initiated on specific points relating to Clause 17, JUSTICE considered that certification was not required as,

“we see no evidence that there is any need for a more stringent test than the leave requirement already being applied by the High Court and the Supreme Court in their leave decisions”.

The Scottish Human Rights Commission gave another reason for not supporting certification. In responding to my consultation, it commented:

“The introduction of a test of general public importance will create a barrier to justice in some cases. Such a barrier creates precisely the problem which the Expert Group recognised must be guarded against—namely the potential for different interpretations of Convention rights as between the different jurisdictions within the UK, with the result that a case in Scotland is decided differently to one in England and Wales that raises precisely the same Convention rights issue”.

As I have indicated, the arguments for and against are well balanced. I will listen carefully to what is said in the course of the debate today and will reflect on that and the representations that have been made.

There are other points of difference with the amendments tabled by the noble and learned Lord, Lord McCluskey. I am not persuaded that I, my successors in office or the Lord Advocate should be able to refer a compatibility issue matter to the Supreme Court if the Lord Advocate or the Advocate-General is satisfied that it raises a point of public importance. I consider that the accused, the Lord Advocate and I should all be subject to the same constraints, so it will be for any of us to seek the permission of the High Court in Scotland or, failing that, the Supreme Court to appeal a compatibility issue to the Supreme Court.

I do not consider that it is necessary for the High Court to have power to refer a compatibility issue to the Supreme Court at its own instigation where it considers that the issue raises a point of law of general public importance. I consider that a compatibility issue should be able to be appealed to the Supreme Court only once trial proceedings have concluded and the issue has been determined by the High Court in Scotland. This will ensure that the Supreme Court has the benefit of the knowledge and understanding of the High Court. If it is important that an issue is determined quickly because of the implications for other cases, then there it may be possible for the courts, at each stage of the process, to hear and determine the issue expeditiously.

That said, I appreciate that these are very technical arguments; they are important but very finely balanced. I have deliberated over them, and I will be interested to hear your Lordships’ comments in the course of this debate. I would be willing to consider returning to this on Report in the light of any comments that are made but I believe that, after a considerable amount of work and consideration, we have struck the right balance. The report of the expert group under Sir David Edward and the subsequent review group under the chairmanship of the noble and learned Lord, Lord McCluskey, have assisted us considerably in trying to reach our position, which I believe is well balanced. I commend the amendments to the House.

Clause 17 disagreed.

Amendments 40 and 41 had been withdrawn from the Marshalled List.

Clause 18 : Time limit for human rights actions against Scottish Ministers etc

Amendments 42 and 43 not moved.

On a point of order, I understood from our grouping notice this morning that we were going to discuss not just clause 17 stand part but Amendments 71 and 72 by the Advocate-General and the amendments to those amendments standing in my name.

My Lords, if I can assist here, my understanding is the same as that of the noble and learned Lord, Lord McCluskey. I think that I said when I opened my remarks setting out my amendments that I was seeking not to wind up the debate but, if anything, to open it. There are important issues to be discussed, if it is possible to rewind so that we can have a debate on the amendments. There is an agreement that clause stand part should not take place.

My Lords, if I may help the Committee, we cannot go backwards on the Marshalled List. We have decided that Clause 17 will not be part of the Bill.

With respect, we are not going back on that: Clause 17 goes out. However, in the same grouping we have the right to discuss the new Amendments 71 and 72, although we cannot move those until we reach that part of the Bill on another day, but because they all raise the same issues the grouping that was arrived at allowed for us to discuss these after dealing with the clause stand part debate. Clause 17 goes out and no one seeks to change that, but we now need to look at Amendments 71 and 72 and the amendments proposed to those amendments.

My Lords, it may be helpful if I tell the noble and learned Lord that he has not lost the opportunity to speak to those amendments, but he will have to do so when they come up on the Marshalled List. He had the opportunity to speak to the amendments after my noble friend the Minister had spoken. However, the noble and learned Lord chose not to take that opportunity. The Question was put and has been decided, but I emphasise that the noble and learned Lord has not lost the opportunity to speak to the amendments in their place in the Marshalled List.

My Lords, may I ask a question? They are on the Marshalled List in this group; that is the point. We are all here ready to debate these issues. It would be very unfortunate if we now moved on to other business and came back to this issue; these all form part of a group.

I am in some difficulty because in listening to what the noble and learned Lord has already said about Clause 17 stand part, he justified his arguments by reference to later amendments in his name—namely, Amendments 71 and 72. It seems to me perfectly plain that these are before the Committee for discussion even though we may for the moment have swept Clause 17 out of the way—firmly batted it out of court. I ask your Lordships to reconsider the matter which has already been introduced because it would cause intense confusion if we passed over what the noble and learned Lord has already said in support of the amendments which will come in place of the displaced section at a later date.

My Lords, I am very grateful to the authorities and the noble Lord in the Chair in connection with this matter. I think we should deal with the amendments but I wonder whether the noble and learned Lord the Advocate-General would like to deal with Amendment 71 before I deal with the amendments to that amendment. Would that not be the proper way to proceed?

My Lords, obviously, I am not formally moving the relevant amendments because we have not yet come to them but I think that I tried to deal with the content and the structure which we wished to achieve through the amendments. Although I cannot formally move them yet, I think that I have spoken to the substance of them and it might take the debate forward if the noble and learned Lord now makes his response.

My Lords, I am perfectly happy to do that. Amendment 71A, which stands in my name, refers to line 11 of government Amendment 71 and proposes to insert the words,

“in the course of criminal proceedings”.

I want to emphasise that we are generally happy with the approach of Amendment 71: at least I am because I am happy that it deals with the Criminal Procedure (Scotland) Act 1995 rather than the 1998 Act—a point which I made earlier. However, the heading of the new clause, which is in bold on the Marshalled List, states:

“Convention rights and EU law: role of Advocate General in relation to criminal proceedings”.

First, I accept that we should deal with EU law as well as ECHR law, although our report did not find it necessary to go into that matter at all. This relates to criminal proceedings. The whole point is that Amendment 71 relates to the Criminal Procedure (Scotland) Act 1995, and we are making provisions in subsection (3) on:

“Right of Advocate General to take part in proceedings”.

I believe that that should read, “take part in criminal proceedings”, for a reason that I shall come to shortly. The provision states, in terms, that:

“The Advocate General … may take part as a party in criminal proceedings so far as they relate to a compatibility issue”.

The compatibility issue is defined here for the purposes of all the proposed new sections, including those that I am proposing.

Subsection (2) of proposed new Section 288ZA states:

“In this section ‘compatibility issue’ means a question whether a public authority has acted (or proposes to act)”

in the way specified in proposed new paragraphs (a) and (b). Again, we ought, for clarity to insert the words, “in the course of criminal proceedings”. They merely add something that is perfectly obvious, but they have a bearing on the important issue as to whether or not questions arising in criminal proceedings might be treated as vires issues in the way mentioned by the noble and learned Lord when he was speaking a moment ago.

Therefore, my next amendment proposes to insert after “whether”:

“an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is outside the legislative competence of the Parliament as being incompatible”.

This is an important issue because the Advocate-General has very properly decided that there should be an amendment to paragraph 1 of Schedule 6 to the 1998 Act. That change appears in the new clause proposed in Amendment 72. Subsection (3) states:

“In paragraph 1 of Schedule 6 …after sub-paragraph (f) insert—‘But a question arising in criminal proceedings in Scotland is not a devolution issue if it is a compatibility issue within the meaning of section 288ZA of the Criminal Procedure (Scotland) Act”.

When one looks at that provision in subsection (2) of the new section proposed in Amendment 71, we find that a compatibility issue includes,

“whether a public authority has acted (or proposes to act) … in a way which is made unlawful by section 6(1)”.

I may be wrong about this, and I hope to hear the noble and learned Lord’s reply, but if a Member of the Scottish Parliament—particularly a Member of the Government—proposes a Bill in the Scottish Parliament that will breach a convention right, as specified in Section 6(1) of the Human Rights Act 1998, that is unlawful. Therefore, under the proposed new clause in Amendment 72, from which I quoted a moment ago, a question arising in criminal proceedings is not a devolution issue, if it is a compatibility issue within that meaning. The result is, I think—although I may be wrong, because this is difficult to follow—that if, in the course of a criminal trial, assuming that the noble and learned Lord’s amendments on these matters are accepted, a person states, “The Act under which I have prosecuted or which has a bearing upon the prosecution is beyond the competence of the Parliament”, it will instantly become a compatibility issue that is not a devolution issue. Therefore, the alternative route of using the vires provisions under Schedule 6, to which the Advocate-General refers, will not be available to anyone. In other words, there is only one route to take, which is what I want to happen.

On 17 January, the Advocate-General said to me in a letter, and repeated today:

“I am not minded to accept the Lord Advocate’s suggestion”—

a suggestion made by the Lord Advocate before the committee at which I spoke—

“that the new appeal should extend to questions as to whether an Act of the Scottish Parliament is compatible with ECHR or EU law. The suggestion would mean that if someone wishes to argue that an ASP is incompatible with the ECHR and that it also relates to reserved matters they would need to use the new appeal route in relation to the ECHR issue as well as the existing devolution issues appeal route”.

I think that his amendments knocked out the devolution issue and have given us what we want, but I would be interested to hear his view on that and whether there has been some confusion on the matter.

The other amendment which I should mention in this context bears on proposed new Section 288ZA in Amendment 71, where I propose to add in subsection (2),

“references to the course of criminal proceedings are to the period beginning with the detention or arrest of a person for an offence and ending with the pronouncing of the final interlocutor”.

The reason for that highly technical amendment is that it is possible that, before a person is detained or arrested, there might be by a public authority—whether the police or the BBC, for example—an invasion of his human right to a fair trial by saying things about the accused even before he is detained. We may need to look at that separately, but the amendment draws attention to the fact that there ought to be a definition as to when criminal proceedings begin in the Act, so as to leave it in no doubt. There have been difficult questions in past cases about when a person is charged, when he is detained, et cetera. Those words themselves are not crystal clear, but I want to make it crystal clear when criminal proceedings begin and when, for the purposes of compatibility issues, they end. That matter is covered by my Amendments 71A to 71C, which draw attention to what I think are problems arising from the framing of Amendment 71, which proposes the new clause.

I must say that I am somewhat confused as to where we are on all this and whether, for example, I have now to address the issue of certification. I am not entirely clear whether the noble and learned Lord, Lord McCluskey, has yet to address that issue.

However, first, as the noble and learned Lord observed, I was a member of the Advocate-General’s expert group looking at the issue of the jurisdiction of the Supreme Court. We welcome the progress that has been made by the noble and learned Lord and reflected in the government amendments. The expert group recommended that the jurisdiction of the Supreme Court should continue and should be focused on the role of the prosecutor, but that convention compliance in criminal should be outwith the jurisdiction or ambit of Section 57(2).

In making these recommendations, it is fair to say that we were conscious of the sensitivities that the proposed changes in the jurisdiction might engage, and conscious of keeping our recommendations within the strict ambit of the remit that we were given. Nevertheless, it is true that our report—and perhaps more importantly the controversy that surrounded the cases of Cadder and Fraser, the debate that was provoked and, most importantly, the review headed by the noble and learned Lord—refocused the debate and changed the emphasis away from the role of the prosecutor. That was a welcome step.

I do not want to detain the Committee on the reasons for going away from the status quo, particularly now that Clause 17 has been departed from, but it is right to say that the jurisdiction was a somewhat contrived one, focusing on the role of the prosecutor, distorting the issue and widening out the definition of acts of the Lord Advocate beyond those which, perhaps, would have a more natural meaning, or particular steps in a judicial process.

We have moved on. The amendments before the Committee break down into a number of clear issues. The first is certification, focused on in the amendments of the noble and learned Lord, Lord McCluskey. That is now the real issue between us: whether or not there should be an additional hurdle, not previously present in the jurisdiction under the devolution issues, of certification. That issue is of genuine public importance. That certificate would be given by the High Court. The decision would be final, with no appeal against the certification. From this side of the House, like the noble and learned Lord, Lord Wallace of Tankerness, we will listen to the debate. Nevertheless, it is fair to say that we do not support certification.

There is of course an issue of principle. For myself, I have a philosophical difficulty with the concept that the court against which an appeal is being taken can itself control access to that right of appeal. There is no appeal against a refusal to certify if the issue is a point of general public importance. The right to petition the Supreme Court would not apply, as I understand it, to certification. Now, of course, I appreciate that it will be said that that does not apply to criminal appeals from England, Wales and Northern Ireland—although I think that there are some exceptions, habeas corpus being one of them. The fact that that is the case in relation to criminal appeals in England and Wales does not make it right that it should be present for fundamental issues of human rights arising from criminal cases in Scotland. The noble and learned Lord the Advocate-General is right to draw a distinction between criminal cases as such and the constitutional issues, which are focused in issues of compliance with the fundamental rights contained in the European Convention of Human Rights.

Moreover, as the issue of certification in England and Wales is at large in criminal cases, we are not dealing with a level playing field—we are not comparing like with like. The present system relies on obtaining leave from the High Court. Leave should be given only if a devolution issue is raised that is seriously arguable and sufficiently important to justify a hearing of the appeal by the Supreme Court. Therefore, I suggest that it is already a high test but there is a right to petition the Supreme Court for special leave if leave is not given. That, in my submission, is an important protection.

There is the question of how certification might work in practice. It would, as Lord Hamilton acknowledges, be a new function for the court. I have no doubt that the court would take the responsibility seriously but how would it work in practice? Although it is a different test, there were 15 cases in which special leave was granted by either the Judicial Committee of the Privy Council or the Supreme Court from 1 June 1999 to the end of February 2011. These included cases of the utmost importance, including the case of Holland, which related to disclosure and the conduct of identification parades, and, most recently, the case of Cadder. I do not suggest for one moment that that was improperly dealt with—far from it. However, the fact is that it was rejected in the sift on two occasions and leave to appeal to the Supreme Court was refused. The appellants presented a petition to the Supreme Court for special leave, which was granted. Whatever one might think of the rights and wrongs of the decision, it certainly dealt with one of the fundamental issues of rights of access to a lawyer. I just make the point that, had the law remained as it was in Scotland, Scotland would have been one of a dwindling number of European countries which denied a right of access to a lawyer before questioning by a police officer. This is perhaps a moot point if the European Union directive on access to a lawyer is opted into by the Government, because that will have to come about as a result of EU legislation. However, that was a fundamental issue and special leave was granted.

Lord Hamilton, the Lord President of the Court of Session, has written to Parliament under Section 5 of the Constitutional Reform Act. It is important that we consider all that he says in his capacity as head of the Scottish judiciary and give due weight to the issues that he raises. Of course, the Government have listened in relation to the first part of his letter, and we welcome that. However, it is also important to put the letter into its context and I shall make two preliminary points.

First, Lord Hamilton does not suggest that the proposal that the Government are advancing in any way impinges on the independence of the judiciary. If that were the case, it would be a most serious matter and would require us to draw back and think again. Secondly, he does not suggest that the proposals impose any further administrative burden on the court system or on judges. In many ways, if anything the burden is more likely to fall on the Supreme Court, and there has been no complaint from that quarter. In so far as the letter from the Lord President relates to certification, it has to be seen against the background of concern from the judiciary in Scotland about the jurisdiction of the Supreme Court.

As we have already heard, the Scottish judges made a submission to the Calman commission and one of the main difficulties that they highlighted was what they perceived as a difference of interpretation between themselves and the High Court and the Supreme Court on the test of miscarriage of justice contained in the 1995 Act. They also raised important issues about delays in the system and the burden. At that time, they suggested three alternative solutions. I need not detain the Committee with what those solutions were but two of them would have removed the jurisdiction of the Supreme Court altogether and the third would have widened the jurisdiction to include any criminal case—not just a convention or EU compatibility. In other words, it would be the same jurisdiction as England and Wales have and would be a novel one for the law of Scotland. It is fair to say that no one thought that the judges’ third suggestion was one that they considered would be taken particularly seriously.

The issue that they put before us in the Calman commission was whether the Supreme Court should continue to have any jurisdiction in convention cases. The Calman commission considered that this went beyond the remit but acknowledged that there was a serious issue to be addressed, hence, of course, by the Advocate-General’s expert group.

Some of the difficulties that the Scottish judges had initially highlighted in relation to miscarriage of justice and its definition were largely resolved in later cases, in particular, I think—no doubt I shall be corrected by others if I am wrong—the case of McInnes in 2009. Some of the issues in relation to the burden on the system and potential delays have been addressed, first, by the expert group and then by the Government and by the expert group of the noble and learned Lord, Lord McCluskey.

I submit that many of the original issues that the judges raised with us have now been dealt with. However, the Scottish judges have continued to press for changes to the jurisdiction. I need not go into this in any detail, as it would not be appropriate, but it is clear that there have been tensions between the two different levels of courts. Perhaps that is inevitable in a new jurisdiction. I suspect that any lingering issues will soon be resolved as the jurisdiction settles down and as the major issues are dealt with. I think many of them, such as disclosure, rights of access to a lawyer and so on, have already been dealt with. Delay was another early issue which was dealt with and on the whole it has not been visited since then and there is also the issue of changes in personnel.

Our task in this Committee is neither to arbitrate between the two courts, nor indeed to come down on one side or the other. Our task is to ask ourselves whether the imposition of a further hurdle in reaching the Supreme Court of the United Kingdom on compliance with fundamental rights and freedoms, incorporated in the European Convention of Human Rights, is appropriate or necessary. We on these Benches think that is not an appropriate measure to take.

We support the amendments that have been tabled by the Government. I listened carefully to what the noble and learned Lord had to say about Amendment 71B. He raises the important issue of how compatibility of an Act of the Scottish Parliament is dealt with in criminal proceedings. My view is that the issue of whether an Act of the Scottish Parliament is compatible with the European Convention of Human Rights should continue to be dealt with as a devolution issue. The question is whether the amendment of the noble and learned Lord the Advocate-General achieves that. We may need to look at that.

Amendment 71C concerns criminal proceedings. We will no doubt hear from the noble and learned Lord on that. Amendment 72A comes later in the group. I am not sure whether the noble and learned Lord spoke to it. I asked whether Amendment 72A was necessary, because the matter is dealt with in Section 124 of the Criminal Procedure (Scotland) Act.

I did not speak to that amendment. I agree that it may not be entirely necessary. However, as the noble and learned Lord knows, many a time have we put something in statute to make a clear point. Because there has been debate, including among lawyers, about whether the High Court of Justiciary is the final court except in relation to compatibility issues, there is something to be said for putting this in the Bill. I felt that that would be a way to do it. That was why I tabled the amendment. The intention was to underline a point that is implicit elsewhere in the Act and, as the noble and learned Lord said, is stated expressly in other Acts.

I am grateful to the noble and learned Lord for that. On the broad issue of references to the High Court and Supreme Court by the Lord Advocate and Advocate-General for Scotland, I will reserve my position and consider the matter in more detail. When I was Lord Advocate, I always thought that the opportunity for doing was important. I believe that I did it once. I also take the point made by the noble and learned Lord the Advocate-General that there may be issues around whether it would be better if any of the parties could ask the court to do this. I will consider that before Report. I think that I have dealt with most of the issues. Given the wide-ranging nature of the amendments in this group, I may have missed something. However, I hope I picked up on all the necessary points.

My Lords, perhaps I may tell all noble Lords that they should feel free to comment on any amendments on the Marshalled List that relate to Clause 17.

My Lords, I will comment in greater detail on the matter of certification. The lawyers among us will recognise that it arises in relation to various amendments, including Amendments 72B, 72C and 72D. The report of the review group that I chaired deals with the matter in paragraphs 35 onwards. No doubt the noble and learned Lord the Advocate-General has had a careful look at what was said there. We are dealing with a point of law of general public importance. The noble and learned Lord, Lord Boyd, referred to the philosophical objection: namely, that a court can prevent an appeal against its own decision. That is fairly common. However, in this case the English Court of Criminal Appeal, having considered that very matter, said that it did not arise because the issue of whether a case raises a point of law of general public importance is not the issue that was decided in the appeal. That empowers the Court of Appeal in England to prevent an appeal to the Supreme Court, but in various cases in England, the Court of Appeal and others have upheld that particular right on the ground that there must be a filter. I could refer your Lordships to some detail, but I shall not go into detail on that matter at this late hour.

In other words, the point to be considered is a point of law of general public importance, a different point from that considered in the appeal. Mention has been made of the case of Cadder in which leave was refused, but I am assured by judges who took part in that case and others that there can be no question that if someone had said to the court that that case raised a point of law of general public importance, the judges would have said that it did and a certificate would have been granted. Of course, there was no occasion to consider that because there was no law in Scotland requiring that to be done. The whole matter has been looked at in great detail in the English Court of Appeal and elsewhere in England, and your Lordships will find a very useful summary of the law in an article by CJS Knight in the Law Quarterly Review 2011 “Second criminal appeals and the requirement of certification”. I shall not read excerpts from that tonight because there is not really time.

Bearing in mind that the High Court of Justiciary has always been responsible for deciding all matters of substance, the only thing that changed in 1998 was the introduction of a new ground of appeal. That is what I said earlier, but I repeat it. Plainly, when the English and, indeed, the Northern Irish considered whether certification should apply to that, they decided implicitly that it would continue to apply there, so why should Scottish judges not be trusted to make the same judgment that is made in Northern Ireland and in the Court of Appeal Criminal Division in England about whether a case raises a point of law of general public importance? It is, in effect, to demean the Scottish judiciary to say that they cannot detach themselves sufficiently from the case in order to make that judgment.

Noble Lords who followed the history of this matter in more detail than I would recommend will know that we raised this question when we put the matter out for consultation between our first and second reports, and nobody suggested that there was anything wrong with the court deciding whether to consider leave to appeal from its own decision. That largely covers the same point.

I ought to deal with some of the objections. First, there is the objection which is the principal one taken by Sir David Edward and some of the members of this Committee subsequent to our report. It was that in England no certification is required for habeas corpus. We do not have habeas corpus in Scotland. We have our own rules and, in any event, we are bound by Article 5. If one wanted to introduce an exception to the rule for certification, it would be easy to do so under reference to Article 5. There are other minor things in relation to contempt of court and courts martial. I have no objection to a list of exceptions which would mirror those in England, except in relation to habeas corpus, which, as I have said, would be dealt with differently.

It is very important to take account of and to give full and proper weight to the written representation by the Lord Justice General. So far as I can tell, it has never been done before. The Lord Justice General thought very carefully and hard, and he decided to make these representations. Furthermore, he consulted the noble and learned Lord, Lord Judge, and he also consulted the noble and learned Lord, Lord Phillips of Worth Matravers, if I recall correctly, and they said that the certification created no problem in England for the courts for which they were responsible. The Lord Advocate and the Scottish Government support our position on this, and the Scotland Bill Committee of Members of the Scottish Parliament also supported it. Indeed, Paul McBride, who was a member of Sir David Edward’s group, has specifically decided to support it and said so to that Committee.

The objections taken by others have been mentioned by the noble and learned Lord—for example, the Law Society and the Faculty of Advocates—but they were barking up a tree which no longer has the branch on which they were endeavouring to sit; namely, that the matter is no longer a devolution issue if it arises in the course of criminal proceedings. Therefore, the idea that because devolution issues are taken to the Supreme Court without permission in other parts of the United Kingdom no longer has any validity. Therefore, in my submission to your Lordships, the reasoning on that is not sound.

If certification and leave are granted in England and Wales, the Supreme Court considers the point of law and then deals with it and any other matters necessary to decide the appeal. That is exactly what we propose. I remind your Lordships of what was said by the Lord Justice General in the written submission—if I can get my iPad to remind me of what I have on it. He said in terms that this issue relates to,

“the appropriate relationship between an intermediate court of criminal appeal (such as the High Court … in its appellate capacity) and a further court of appeal (such as the Supreme Court)”.

He goes on to discuss that in some detail. He said that the English provision has recently been held to be “Convention compliant” in the case of Dunn in 2010. He adds:

“From conversation with the current Lord Chief Justice of England and Wales (Lord Judge) and with the current Lord Chief Justice of Northern Ireland (Sir Declan Morgan) I understand that each of them finds the certification requirement to be valuable and, so far as I am aware, it raises no difficulties in practice”.

At paragraph 13 of the written submission, he mentions that it would have “value for Scotland” and, in particular, that there is no reason why we should be different from England in relation to that. Perhaps I may remind your Lordships of the quotations that I gave from House of Commons Hansard of 21 June 2011 from Ministers who envisage that the regime should be the same on both sides of the border in relation to the Supreme Court.

On the very important point made by the noble and learned Lord, Lord Boyd, the Lord Justice General said:

“The consideration of applications for a certificate would be a new responsibility for the judges of the High Court. But there is every reason to suppose that, like their colleagues in the other jurisdictions in the United Kingdom, they would act reasonably and responsibly”.

I remain of the view that the relevant amendment should be considered further by the Minister and the noble and learned Lord, Lord Boyd, but we will not reach it today because it is way down the list. However, I am certainly reserving my position. After today’s debate, if I can overcome the confusions which are partly my responsibility, I intend to put down amendments for Report in order to ensure that the matters still outstanding are more fully debated. I would express the hope to the House authorities that on that occasion we will not be sitting late on a Thursday afternoon when the Scots have gone home—sent homeward to fight again is the expression that we will be hearing on Saturday afternoon in a different context. They have gone home, which is a great pity because, although this is not the most important matter since the fall of the Berlin Wall, none the less it is an important matter in this context. I remind the noble and learned Lord of what I have said to him, and I think that he agrees with me. This is not just for Christmas; it is for a very long time. It may be many years before this legislation is looked at again, so I hope that it will be looked at very thoroughly in this context.

As far as I am concerned, that deals with certification and I will return to the other matters in a moment or two.

Lord Cullen of Whitekirk: My Lords, the review group under the noble and learned Lord, Lord McCluskey, is to be complimented on the work that it has done so enthusiastically but I have considerable reservations about the proposal that there should be certification for access to the Supreme Court. Of course, I speak with an interest in this matter as a former Lord Justice General. As matters stand, an appellant who seeks permission from the Supreme Court, having been refused it by the Appeal Court, requires to satisfy the appeal panel of the Supreme Court in accordance with the relevant practice direction that the application raises,

“an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time”.

So one must ask: is there a need for a certificate from the Appeal Court? The main argument presented by the noble and learned Lord, Lord McCluskey, is that it is necessary in order to achieve consistency or parity with the position in England, Wales and Northern Ireland. But, as the noble and learned Lord, Lord Boyd, has said, is this comparing like with like? The Appeal Courts in those other jurisdictions may be asked to sanction appeals to the Supreme Court on a wide variety of issues concerned with any aspect of criminal law and procedure. In the case of Scotland, on the other hand, the Supreme Court has a special jurisdiction to deal with issues confined to alleged breaches of human rights, and it is for this reason that the group under Sir David Edward rejected any attempt to draw a parallel. The group confirmed that this was the case when responding to questions from the review group under the noble and learned Lord, Lord McCluskey.

As has been pointed out, the original reason for certification in the case of England and Wales appears to have been a fear that the House of Lords would be swamped with cases. I have yet to hear anything to indicate that the Supreme Court or its members have expressed concern that they are going to be or indeed have in the past been flooded with appeals. All that deals with the question of need, but the critical question is whether it is appropriate that, of all things, for human rights cases there should be a need to have this certificate.

The law relating to human rights, and in particular the way in which it impinges on criminal procedure, is still in a state of development. We have not yet got to the end of the road. Experience has shown that it may have important consequences for the liberty of a subject and for the processes of investigation and prosecution. The Supreme Court has the unique responsibility of interpreting the European Convention on Human Rights in a manner that achieves consistency across the United Kingdom while respecting the distinctive characteristics of the different jurisdictions. I respect what has been said by the present Lord Justice General in his written representations about the ability of the Appeal Court in Scotland to appreciate the operation of the criminal law in the community which it serves. Thus, that Appeal Court may be in a good position to form a view that the compatibility issue in a particular case does not, according to the court, raise a point of law of general public importance. There is nothing to prevent that Appeal Court from saying so and indeed giving it as a reason for refusing leave, but for that to constitute an absolute bar to an appeal to the Supreme Court is altogether a different matter. So it is very important to consider the practical implications of the proposal being made by the noble and learned Lord, Lord McCluskey.

Perhaps I should cite an example of what may happen. What if the Appeal Court in Scotland, for some reason, has not addressed the compatibility issue which had been raised by the appellant before it, whereas the Supreme Court considers that it should have done? The difference may be critical. This has happened in the past with regard to devolution cases and it may happen in the future with regard to compatibility issue cases. A recent example is provided by the case of Fraser, which has already been mentioned, decided in May last year by the Supreme Court. The court held that, in declining to address a devolution issue, the Appeal Court had failed to adopt the correct test. On the devolution issue, it decided that the non-disclosure of certain police evidence had deprived the appellant of a fair trial, and on that basis his appeal was allowed. Of course, the appellant had access to the Appeal Court by obtaining permission to appeal. I shall say nothing as to the rightness or wrongness of any of those decisions. What I am concerned with is the possibility for views to diverge.

If one supposes that a certificate is to be mandatory for a right of appeal to the Supreme Court, it raises a difficulty. It seems doubtful that an appeal court which had not determined the compatibility issue would find itself in a good position to decide whether to grant this supposed certificate. It is not impossible that it might do so, but it seems highly improbable, because, as far as it was concerned, there would be no compatibility issue to be addressed—and, of course, the Supreme Court is entirely for compatibility issues. This is perhaps just one for example of what may happen. All I say is that, in viewing this proposal, one should be very wary about approving it.

I shall speak briefly because I look at the matter not in particular detail but, like the noble and learned Lord, Lord Boyd, from a philosophical view. Scottish criminal law and procedure has developed in an entirely different way from that in the other jurisdictions in the United Kingdom, but it has now had placed above it a Supreme Court with a particular mandate. It seems to me that that is the court which at the end of the day can determine whether what is being brought before it, whether with leave or without it, is a matter with which it should be concerned, looking to its universal jurisdiction in order to provide consistency in a very special area of law.

That being so, notwithstanding my having no reason to doubt that in general the court below will be capable of determining whether a point of public law importance arises, there are special cases where that might not be perceived by the court below and no harm is done by leaving out the certification procedure which is available in a different form in the way of leave, and by adopting the path in these matters suggested by the noble and learned Lord the Advocate-General.

I do not intend to deal with any of the other matters, because this seems to me the real nub point in the relationship between the High Court of Justiciary and the Supreme Court which arises out of the other amendments which have been proposed.

I hope that this will be the last time that I rise to my feet in this part of the debate. I shall endeavour by Report to formulate one amendment on matters relating to certification so that we can address this topic more fully than we have been able to do today.

Perhaps I may turn in the mean time to Amendment 72C and, linked with it, Amendment 72H. After “only”, Amendment 72C would insert,

“after the final determination of the proceedings, except with the permission of the High Court under subsection (5C)”.

That subsection relates to proposed new Section 288AB and references before the finality of the proceedings. In the normal case, the judgment that is required to be made under Article 6, which is the most important article bearing upon these issues, is whether the appellant— the accused or convicted person—has been deprived of a fair trial. The courts in Strasbourg, England and Edinburgh have repeatedly said that you judge the question of the fairness of the trial in the light of the whole circumstances. That is why I suggest that normally the appeal should take place at the end of the proceedings in the High Court and not before. That has the advantage that it avoids delay in the middle of proceedings of an unnecessary kind.

There have to be exceptions. The most obvious example is an issue such as the temporary sheriffs case, where it is independent of the facts of the case. It is an issue as to whether or not the court is an independent tribunal. There have been other cases of that general character. The court could make an exception there and we can surely trust it to do so. But the idea is that no appeal goes before the proceedings have been finalised in the High Court.

Amendment 72H deals with an issue related to that but also related more to the fact that the court can send it away ex proprio motu if it decides that that would further the interests of justice. The amendment relates to the fact that the Lord Advocate or Advocate-General may require the High Court to refer a compatibility issue to the Supreme Court for determination. That appears to be again on a par with the court deciding that the interests of justice require this issue to be decided if it can be decided without reference to the facts of the case. The Lord Advocate in particular—I am sure that others in the Committee could confirm this—may well have knowledge of the consequences of a particular decision going a particular way. He may be anxious to get these consequences ventilated and the decision made because there may be hundreds or even thousands of cases pending the decision. I very much want to see that the Lord Advocate has this power.

I am sure that it would be exercised responsibly. There is no reason to suppose that the Lord Advocate would exercise it irresponsibly and I am sure that it will be confined to those cases where it is clear that the matter is independent of the fairness of the trial on the facts or the conduct of the trial itself. Rather, it is dependent on an issue that lies outside the trial.

Amendments 72F and 72G relate to the possible extension of the 28-day period. In my submission, once a case has been through the High Court before a judge and jury or before the Sheriff Court and then it goes to the High Court of Justiciary sitting as an Appeal Court, one would have thought that by that stage all the issues had been properly identified. Therefore, 28 days is long enough to allow an appellant to formulate his grounds of appeal. That is why I do not see the need for a longer period for the High Court, having regard to all the circumstances. That is contained in the amendment of the Advocate-General. I wanted to delete that proposed new subsection and also the one relating to a similar power in the Supreme Court.

It is important to bear in mind that under the European Convention on Human Rights and the Human Rights Act the victim is usually the accused person, whereas the injured person or the relatives of the deceased person are not victims at all. But in truth and public understanding, the real victims of crime are those who have suffered from the crime. They want to see cases finished as quickly as possible. Therefore the possibility that the Supreme Court or the High Court may take weeks or months to decide a matter and then allow an appeal is abhorrent to the general public. I submit that the Government should consider very carefully accepting my amendments to the new clause proposed in Amendment 72 and restrict the period to 28 days.

My Lords, I have very little else to add to what has been a useful debate. However, I hope that next time we come to this we are able to group the amendments in such a way that we can have a more structured debate, because it has not been particularly easy to follow. The noble and learned Lord has been up and down on his feet—I do not blame him for that in any way, but the way that this has progressed has been unfortunate. Perhaps next time we can look more clearly at grouping the amendments in a more coherent manner.

It may be regarded as something of an impertinence for one who is not a Scots lawyer to intervene in such a debate and I therefore propose to confine my remarks. I hope that when we do come back to this, there will be a jury as well as judges sitting, and that we may hear the voice of the man in the street on this matter. Speaking with the view of the man in the street, I am bound to say that I find the Government’s position on this, and the views expressed by the noble and learned Lords, Lord Cullen and Lord Cameron, persuasive. It seems to me that the prime consideration is not whether or not the trial can be completed quickly, but whether or not justice is done. Those who are charged with an offence should have the right of appeal considered, unrelated to whether or not the issue is of public importance. It is of direct importance to the individuals involved in the trial. I may be completely off beam, and I recognise the risk of intervening in such a debate, but having listened to most of the arguments, I found them compelling, particularly on the side of the noble and learned Lord, Lord Cullen.

My Lords, first of all I thank all the noble Lords—noble and learned Lords—who have taken part. We may be small in number, but we have two former Lord Advocates, a former Solicitor-General and Senator of the College of Justice, and a former Lord Justice General. The experience that has been brought to bear on the issues has been quite considerable. We even have a member of the jury in my noble friend Lord Maclennan.

In retrospect it would have been easier if we could have had a more focused debate, but it is quite clear that we are going to return to this matter on Report and I certainly take on board the points that have been made. The grouping was intended to allow for a full discussion on this issue and all the different points in relation to it. I will certainly give consideration, through the usual channels, as to how we might group the amendments on Report so that we have some quite focused debate, particularly on the point of certification, which is possibly the most important point at issue.

I will come on to certification in a moment, but will briefly respond to some of the other points raised, particularly by the noble and learned Lord, Lord McCluskey. He indicated that he had tabled Amendment 71A to insert the words,

“in the course of criminal proceedings”.

The amendment amends the proposed new Section 288ZA(2) to do this. We believe that our amendment inserting Section 288ZA(1) makes clear that the new appeal route only arises in the context of criminal proceedings, but I did listen to what the noble and learned Lord said. There may be some ambiguity or lack of sufficient clarity, and I will certainly want to look at this. I have looked at drafts at various times and I do accept that it is sometimes difficult when you are trying to import things into a different Act to make sure that it is right. I will look at the particular point that he raised there.

With regard to the noble and learned Lord’s point about defining “criminal proceedings”, the term “criminal proceedings” is already used in the Criminal Procedure (Scotland) Act 1995, and we are therefore content that no definition is required. Indeed, inserting a definition just in relation to these particular provisions may inadvertently cast doubt on the meaning of the term when it is applied to other provisions of the 1995 Act. Therefore, to ensure consistency throughout the Act, we felt that particular amendment would not be necessary.

The noble and learned Lord, Lord McCluskey, asked whether there would be a compatibility issue if an Act of the Scottish Parliament was introduced by an MSP in breach of Article 6. It is important to point out that introducing legislation in itself does not change the law and would not be incompatible with the convention. It is only when the Bill is passed that the issue of a possible breach of Section 29 of the Scotland Act would arise. At that point, a challenge to an Act of the Scottish Parliament would be a devolution issue. However, I think that the noble and learned Lord, Lord Boyd, indicated that we had made it clear—and the noble and learned Lord, Lord McCluskey, read out from the letter that I sent to him last month—and it is certainly clear that it is the Government’s intention that issues that arise in respect of Acts of the Scottish Parliament over whether they are compatible or within competence, under Section 29 of the Scotland Act, should be treated as devolution issues. They should use the procedures that currently exist for devolution issues and should not go down a route for compatibility issues. Indeed, my concern was that you could have some parts going down a devolution issue and some going down a compatibility issue. That is certainly our intention; I will look carefully at these amendments as drafted to make sure that proper effect is given to that intention and that an unintended ambiguity has not arisen.

The noble and learned Lord, Lord McCluskey, also raised the question of time limits. The reason for the exception here was not without precedent—and I think that there was agreement generally that the time limits should be there. Section 7(5) of the Human Rights Act 1998 provides that proceedings alleging that a public authority has acted unlawfully by virtue of Section 6(1) of the Human Rights Act must be brought within a year of the alleged unlawful act. However, this time limit can be extended if the court or tribunal considers it equitable having regard to all the circumstances.

In a case reported last year, R (Cockburn) v the Secretary of State for Health, the court considered it equitable to extend the time limit under Section 7(5) because the claim raised a matter of public importance, and it was not suggested that the delay had not caused hardship to the defendant or to third parties or was detrimental to good administration. This is to give discretion to the courts when it may be that this is how justice can be done in circumstances where no one is necessarily at fault and permission was not sought in the time limit specified in the amendment.

The other point related to the point raised by the noble and learned Lord, Lord McCluskey, about the Lord Advocate or Advocate-General being able to refer a matter to the Supreme Court. This is an issue which I have certainly given careful consideration to, and I readily accept that there are good arguments on both sides. There is the argument, as the noble and learned Lord indicated, that a lot of cases might be backing up when one decision is needed to resolve a whole host of cases. On the other hand, as I indicated when I spoke earlier, the advantage of the trial having been completed, and the Supreme Court having the advantage of the case having been given consideration by the High Court of Justiciary, is something that is of importance. However, I will reflect again on that. I have done so many times, and there are important issues here.

I have not had a chance to check, but I have a recollection that the Attorney-General in England intervened to have a case taken to the Supreme Court earlier, but I am not sure about that. Perhaps the noble and learned Lord could deal with that on another occasion, if he is not able to do so today.

Indeed, I can confirm that the Lord Advocate has referred cases directly to the Supreme Court; the so-called “sons of Cadder” cases were on references by the Lord Advocate to the Supreme Court within the last 12 months. So it clearly has been done. Those were cases clearly where there was a wish to get clarity in some of the implications of the original Cadder judgment. So there are certainly good arguments as to why that should be there, and ones that I am certainly prepared to listen to further.

I referred a case about the independence of justices of the peace, for the very reason to which the noble and learned Lord, Lord McCluskey, referred—because of the importance in getting clarity at an early stage so that the system as a whole did not seize up.

I am grateful to the noble and learned Lord, Lord Boyd, for that because there are arguments there and I will give further reflection to them.

A good number of issues have been aired on certification. I am grateful to the noble and learned Lords, Lord Cullen, Lord Cameron of Lochbroom and Lord Boyd of Duncansby, who indicated on certification that although there have been issues against it, in fact the case that the Government have sought to make against certification can be justified on a number of grounds. It is right, as a number of your Lordships have indicated, that we are not comparing like with like. As I indicated in my opening remarks, in England and Wales the whole criminal justice system of substantive criminal law and criminal procedure is the potential subject matter of appeals to the Supreme Court, whereas here we are dealing with what are essentially constitutional issues that arise in the context of a criminal case—namely, convention compliance or European Union laws.

Also, as I indicated before, the original justification for certification was very much administrative. It was an Administration of Justice Act in which it was introduced, to ensure that there was not a great flood of cases. I believe that it was brought in not for any reason of jurisprudence—as the quotes from the then Lord Chancellor, Viscount Kilmuir, suggest—but as an administrative break. Again, not least because of the representations which we have received from the Lord Justice General, we will treat these matters very sensitively and seriously, giving proper weight to the arguments that have been advanced again. It would be fair to say that the arguments advanced in the course of your Lordships’ debate this evening have not really prompted me to change my mind on this, but no doubt these matters will be returned to.

I am grateful to the noble and learned Lord, Lord McCluskey, for giving us a focus for some of the debates which we have had, and I very much hope that on Report—

I want to reiterate that I regret that because of the way the amendments were grouped, the debate was not able to take the coherent form which all of us wanted. Certainly, I am not satisfied with the manner in which I was able to present the individual arguments on the separable points. However, I am very grateful to the noble and learned Lord for indicating that one way or another we will be able, when we return to this matter more maturely on Report, to look at the remaining issues that will be outstanding—because they are not all going to be raised again—and deal with them coherently and finally at that stage.

I concur with the noble and learned Lord and perhaps we will have a bigger attendance, although that should not in any way diminish the quality of the contributions we have had this evening, because these are important issues. With these words, perhaps we can confirm that Clause 17 will not stand part of the Bill.

My Lords, for the avoidance of doubt the Question is that Clause 17 stand part of the Bill. As many as are of that opinion will say Content; the contrary Not-Content.

Clause 17 disagreed.

Amendments 40 and 41 had been withdrawn from the Marshalled List.

The Question is that Clause 18 stand part of the Bill. As many as are of that opinion will say Content.

Clause 18 agreed.

Clause 19 : Power to vary retrospective decisions about non-legislative acts

Amendment 44 not moved.

Clause 19 agreed.

Clause 20 : BBC Trust member for Scotland

Amendment 44A

Moved by

44A: Clause 20, page 14, line 6, leave out “the agreement of” and insert “having consulted”

My Lords, my mind goes back to consideration of the Scotland Bill in 1998. Some things are the same and some things change. What is the same is that now we are reduced to a relatively small House; what is different is that in 1998 our deliberations were at 2 am—when we used to carry on till that time—and now it is 6.45 pm. Nevertheless, as they say, I am sure that we will be able to make some progress.

The amendment deals with the appointment of what is called the BBC Trust member for Scotland. In olden days it used to be referred to as the “Scottish governor” of the BBC. At the moment the Bill says:

“A Minister of the Crown must not exercise without the agreement of the Scottish Ministers functions relating to selection for a particular appointment”,

and then goes on to explain. My amendment would take out “agreement” and put in “consultation”.

That is partly because of something that happened way back in 1974, when local government in Scotland was reorganised. I remember going to a conference of the good and the great, where the whole discussion was about the relationship between the two tiers of local government in Scotland, the regions and the districts. I remember a very distinguished civil servant at the time saying, “Given good will, the relationship between the two tiers of local government would work very well indeed”, and a grizzled chief town clerk—those were the days when we had town clerks rather than chief executives—saying that in his experience the last thing that you could count on in the relationships between local authorities was the existence of good will.

I am not daring to say that that typifies the relationship between the Scottish Parliament and the Parliament of the United Kingdom, or between Scottish Ministers and UK Ministers, but having an appointment that depends upon the agreement of two Ministers from different Parliaments and maybe of different political hues, as sometimes happens in this House, creates at least the opportunity—I put it no stronger than that—for mischief-making. In other words, it is possible to generate a major row or a clash over something relatively minor, so that what perhaps starts off as an irritant becomes a major issue of principle. Basically, let us avoid that; let us avoid creating a structure that offers that possibility.

By all means let us have consultation. My amendment would mean that the Secretary of State had consultation with Scottish Ministers. To be honest, I would prefer the Scottish Minister to have the decision rather than the Secretary of State, if we got away from the business of agreement. My first position is the Secretary of State and my second position is Scottish Ministers. I just want to avoid the opportunity—the invitation, almost—to create a fuss over something where it should not exist.

My Lords, there is an important point in what my noble friend says. The Calman commission recommendation was that:

“The responsibility for the appointment of the Scottish member of the BBC Trust should be exercised by Scottish Ministers, subject to the normal public appointments process”.

There is no suggestion there that it would be by anyone other than the Scottish Ministers. Perhaps in addressing my noble friend’s point, the Minister could also address the issue of why there has been a difference of approach in the Bill from that of the Calman commission’s report.

My Lords, I am most grateful to the noble Lord, Lord Sewel, for putting down his amendment as it gives me the opportunity to clarify Her Majesty’s Government’s view on this delicate point.

Clause 20 will make certain that the Secretary of State has to seek the agreement of Scottish Government Ministers in the process of appointing the BBC Trust member for Scotland. Currently, the Scottish Government are involved in the appointment process on an informal basis. The clause will formalise the involvement of Scottish Ministers in the appointment process and gives them the legislative basis to undertake their responsibilities in relation to the appointment process.

Under the terms of the BBC charter, the Trust member for Scotland must be qualified by virtue of his knowledge of the culture, characteristics and affairs of the people in Scotland and his close touch with the opinion of that nation. Therefore, we feel it is preferable that Scottish Ministers should have a significant role in agreeing the appointment. In answer to the noble Lord, it is highly unlikely that the situation would arise in which they would fundamentally disagree over the appointment of a candidate. If Scottish Ministers do not give their agreement to the proposed DCMS appointment of the BBC Trust member for Scotland, they would need to provide justification for that. Both sets of Ministers have the same interest in not wanting to leave the seat empty. The opportunity is primary for a member of a UK body—that is, the BBC Trust. Furthermore, broadcasting remains a reserved matter, something that the Calman report was very clear should remain the case, and we are following that principle. On this basis, the UK Government believe it is important to retain the ultimate responsibility for the appointment.

This amendment would place a duty on the Secretary of State only to consult Scottish Ministers in appointing the BBC Trust member for Scotland, rather than seeking their agreement to the appointment. It is our view that this does not give the Scottish Government sufficient involvement in the appointment process. Securing the agreement of the Scottish Government is the appropriate way of involving them in the appointment process for the BBC Trust member for Scotland. The existing provision gives the Scottish Government an important and appropriate power and the UK Government do not wish to weaken this. I hope that this satisfies the noble Lord, Lord Sewel, and I urge him to withdraw his amendment.

My Lords, this has been a short debate so I do not even have to thank anybody for taking part in it. I think this is one of those occasions where that well known double positive, which is in fact a negative, comes into play with reference to a fundamental disagreement between the two parties, to which the comment is, “Aye, that’ll be right then”. I very much think that there is indeed the possibility for that level of disagreement. I know that this looks likes an enormously trivial matter but I ask the noble Baroness at least to reflect on it because if we do not have a clear focus on where responsibility lies—that is, the relevant decision is taken by one person in consultation with another—I am afraid the Government may live to regret that state of affairs.

Eagle-eyed noble Lords will note that I ought to have tabled a similar amendment to Clause 21, which relates to Gaelic broadcasting. However, I did not do so because I was totally incapable of pronouncing the name of the organisation involved.

Amendment 44A withdrawn.

Clause 20 agreed.

Clause 21 agreed.

House resumed.