Mr Alistair Carmichael
MP for Orkney and Shetland · Liberal Democrat · United Kingdom
“I do not know whether this is something I still need to declare, Mr Speaker, but I visited the Falkland Islands in 2003 as a guest of the Falkland Islands Government. They have never invited me back.”
“I remind the House of my entry in the Register of Members’ Financial Interests and also that my wife is a practising veterinary surgeon. What is happening was predictable because it was predicted. The Government were warned by the National Audit Office in June last year that they were unprepared for outbreaks of this sort.”
“The Minister is surely aware that there is no route to net zero that does not go through oil and gas hydrocarbons, and that not exploiting resources on the UK continental shelf leaves us reliant on imports, which also has carbon consequences that must be taken into account.”
“The transition to clean energy could be an opportunity to build a different model that would, to use the First Secretary of State’s own words, end “overly centralised decision making and over-privatisation”.”
“I welcome what the Prime Minister just said about strengthening farming. If he is serious about this, one of the first things he can do is ensure that our farmers do not have to compete with imported food that is produced to lower standards than we expect.”
“Q4. Like others, I have always respected the Prime Minister as somebody who was in politics because he wanted to give service to his country, and he has earned our gratitude for that. In my constituency, those who volunteer as coastguard rescue officers also do so from a wish to give service to their community.”
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“I have always been of the view that power is best exercised closest to the community affected by it, and the seabed as a resource could be much better managed if it were under the control of local communities—island communities, in particular.”
“Four years ago, I was very much in favour of devolution to the communities: it was something on which we could not build a consensus— [ Interruption. ] The hon. Gentleman has asked a question; if he calmed down a little, he could listen to the answer. Four years ago, we could not build a consensus on this issue and that was a matter for regret. I regularly pursued the issue, as I am sure the Secretary of State will recall. I am delighted now to be able to place publicly on the record my enthusiasm for devolution to council areas—possibly even sub-council areas. That is why amendment 57 seeks to facilitate the devolution to the Western Isles, Orkney and Shetland of the powers of the Crown Estate commissioners, so that the communities have the day-to-day responsibility and reap the financial benefits.”
“I remind the House that the issue was the subject of two reports to the Scottish Affairs Committee in the last Parliament, and has also been pursued vigorously by the three island authorities in their engagement in the “Our Islands Our Future” process, which I was keen to encourage when I was Secretary of State. I suggest that if we were able to achieve devolution to the three island authorities first, the way would be smoothed for those in the Highland region area, and Argyll and Bute in particular. I know that the issues relating to the islands and coastal communities in those council areas are very similar to those for the Western Isles, Orkney and Shetland.”
“I shall allow the Secretary of State to speak for himself when he has the opportunity to do so later; I am sure we will all be on tenterhooks to hear what he has to say. It is manifestly the case that the seabed as a resource could be better managed—and it would be if it were managed by the communities most directly affected. That would generate more income. There are tremendous opportunities for generating income from the seabed, many of which are thwarted because the Crown Estate commissioners over the years have taken an especially narrow construction of their duties under the Crown Estate legislation. I fully accept that amendment 57 seeks to promote the interests of the Western Isles, Orkney and Shetland.”
“Control over occupational health issues—many of which are practically unique in profile to Scotland, such as those in offshore oil and gas and in agriculture—should now be formally devolved to Scotland. That would be a recognition of the practice that has developed since devolution and the creation of the Scottish Parliament in 1999. It is merely a recognition in law of something that is already widely practised. Finally, new clause 27 is fairly technical and, again, was drafted by the Law Society of Scotland. It would give effect to the particular models of business incorporation that we have in Scots law and is a recognition that that, too, should be under the control of the Scottish Parliament.”
“They seek to remove the limitation “for which the maximum charge for use is more than £10”. Paragraph 74 of the Smith commission agreement stated: “The Scottish Parliament will have the power to prevent the proliferation of Fixed-Odds Betting Terminals.” It is the analysis of both the Law Society and, again, the Devolution (Further Powers) Committee that the Bill does not achieve that end. Removing the maximum charge would most effectively achieve the objectives set out in the Smith commission. Likewise, the effect of new clause 26 would be to devolve the functions of the Health and Safety Executive. Health and safety enforcement in Scotland is already practically devolved.”
“I remind the House that much estate agency in Scotland is done by firms of solicitors acting as estate agents. They do it very effectively within the context of Scottish land law practice and conveyancing which, being Roman in origin, is fundamentally different from the law applicable in other parts of the United Kingdom. I would suggest in support of the Law Society’s amendment that devolving the regulation of estate agents makes perfect sense. It is another aspect of our business and commercial life, as well as our personal and private life, that is managed completely differently in the Scottish context and in Scottish law. It is an anomaly that we should take this opportunity to address. Amendments 31 and 32 deal with gaming machines in licensed betting premises.”
“However, it is the assessment of the Law Society of Scotland that the limitations on transfer should only be such as are objectively necessary and that they must not be unduly restrictive of the principle in paragraph 63. It seems to be a notion of some novelty in Whitehall that tribunals can be running independently and applying legislation that goes across the whole of the United Kingdom. I could never share that analysis of novelty, having practised in sheriff courts and watched over many years the practice in the High Court and the Court of Session do exactly that. I never quite understood —perhaps the Secretary of State will be able to explain it tonight—why this is so difficult. Amendment 30 is another Law Society of Scotland amendment. It deals with the regulation of estate agents in Scotland under the Estate Agents Act 1979.”
“Paragraph 63 states: “All powers over the management and operation of all reserved tribunals (which includes administrative, judicial and legislative powers) will be devolved to the Scottish Parliament other than the Special Immigration Appeals Commission and the Proscribed Organisations Appeals Commission.” Paragraph 64 states: “Despite paragraph 63, the laws providing for the underlying reserved substantive rights and duties will continue to remain reserved (although they may be applied by the newly devolved tribunals).” In implementing paragraph 63, there must be scope for the continued reservation of the substantive law and that may take forms that will require some limitation on the functions transfer.”
“The analysis of the Devolution (Further Powers) Committee in the Scottish Parliament and the Law Society of Scotland is that what remains in the Bill is imperfect, because it does not give full effect to paragraphs 63 and 64 of the Smith commission report.”
“I seek to build consensus today. It is unfortunate that the hon. Gentleman is not minded to do so. I say to him simply this: if he speaks to his colleagues in the Comhairle, he will find they have enthusiasm for this matter. They pressed me and others in government very hard in the previous Parliament to proceed on this. It would be to his benefit and to the benefit of his constituents if he were minded to give his support. Amendments 27 to 29 have their genesis, as do many others, in briefings provided by the Law Society of Scotland. They relate to the administration of tribunals in Scotland. This was some of the most difficult and challenging work for both the Smith commission and the Government.”
“I remind the hon. Gentleman that my amendment provides for agreement between the Scottish Government and the Treasury. Surely that would make the design of the scheme open to full input from the Scottish Parliament.”
“I remind the hon. Gentleman that the Western Isles Council, the Comhairle themselves, were urging me to take this course of action. Do they not have democratic legitimacy as well?”
“If the hon. Gentleman speaks to his colleagues in local government—I know he does not always do so—I am pretty sure that they will tell him that I was an enthusiastic promoter of their cause within government.”
“If there are not to be two tiers of MPs in this House after these changes, what on earth does it mean to have a double majority at Report stage? I have to say I think it is an outrage that the Government are seeking to drive ahead with a fundamental challenge to the constitutional integrity of this House as the Parliament of the UK through Standing Orders. If the Leader of the House really thinks these proposals will bear scrutiny, he should bring forward primary legislation for proper scrutiny both on the Floor of this House and in the other place. If he thinks he can do that, let him come ahead and do it.”
“I want briefly to consider the constitutional architecture of which the Human Rights Act is now such an important part. For example, it is hardwired into the devolution settlements in Scotland, Wales and Northern Ireland.”
“Are there circumstances in which the Government would be prepared to leave the convention? Doing so would put us in rather select company: it would be us and Belarus, and that is not the company I envisaged the United Kingdom finding itself in. In previous Parliaments, I worked with Amnesty International and other organisations on the worldwide abolition of the death penalty. I campaigned with various groups in the United States, South Korea, Japan and elsewhere. The UK has tremendous standing on human rights across the world. We would lose a lot if we walked away from the convention and put ourselves in the company of Belarus. We should be doing what we can to bring Belarus within the convention; we should not be seeking to join it outside.”
“That brings us back to the question posed by the right hon. and learned Member for Beaconsfield: what are we hoping to achieve here? In truth, the Abu Qatada case and the right of prisoners to vote are cases that, before the Human Rights Act, would have got to Strasbourg. Those are exactly the sorts of cases that we saw going from this country over the years. The question that then arises is if we are trying to get round these cases by somehow seeking to repatriate jurisdiction, what does that mean for the United Kingdom’s future as a contracting party to the European convention on human rights? When the Minister responds to the debate, I hope he will answer this question: what is the Government’s position in relation to our continued future as a contracting party to the convention on human rights?”
“Human rights are not just there for the nice people. If we are to defend human rights in a meaningful and worthwhile way, we have to be prepared to defend the rights of the unworthy individual from a legitimate authority, or the right of an unpopular minority against the popular majority. Perhaps I should declare an interest: as a Liberal Democrat, I know what it is to be part of an unpopular minority. For such reasons, the Human Rights Act is inevitably going to be unpopular in government, because it stops Ministers doing what they might otherwise wish to do and what they might otherwise find it expedient to do. That is why, if the protections are to be meaningful, they must be overseen by the judiciary, and not by Parliament or by the Executive, who are insulated from the mood of public opinion at any given time.”
“In one case that was offered by way of a working example, a patient suffering from dementia was on a ward where he had been subject to a “do not resuscitate” order. On investigation, it was found that the doctor in charge of the ward had imposed such an order in respect of everybody on the ward without discrimination. At its most fundamental, the Human Rights Act protected the patient’s right to life. I suspect that such cases are the easy cases. If we dealt only with the easy cases, we probably would not be here today. There is no denying that the application of the Human Rights Act has produced a number of controversial cases. The cases of Abu Qatada and those relating to the right of prisoners to vote are two that spring most readily to mind. This goes to the heart of the matter for me.”
“The Human Rights Act has brought much more than dry jurisprudence to our legal system and to our constituents. It has offered many of our fellow citizens a basic, fundamental right to respect and dignity in their dealings with government and other public bodies. To take a few instances, it has allowed people with mental health problems the opportunity to retain some rights and some control over their own lives when dealing with the national health service; it has allowed victims of crime to insist on proper investigation of the crimes from which they have suffered; and it has allowed families to be kept together in circumstances in which the operation of the state might otherwise have kept them apart. At its most basic, it has in one instance ensured the right to life.”
“Is it that we should remain party to the convention, or will the Government at some future stage, if they are unable to achieve their stated aims, countenance withdrawal from it? It is worth reminding ourselves of exactly what the Human Rights Act does and the change that it wrought after its implementation. In a dry legal sense, it allows access to convention rights through our domestic courts. Section 2 of the Act says that in reaching judgment our UK domestic courts must take account of the European Court of Human Rights judgments. Whether this was to be extended to make it a binding precedent was considered in the other place during the passage of the Bill and was expressly excluded, so I think the ambit and the extent of the operation of section 2 is an important part that is often misunderstood or just ignored.”
“Those within government who are considering how to proceed in this way would do well to listen to his words. I expressed that view at the time as a Cabinet Minister. I felt that that contribution to the debate failed to take proper account of the way in which the Human Rights Act had become part of the constitutional architecture of the United Kingdom. The right hon. and learned Member for Beaconsfield also asked the question that goes to the nub of the issue: what are we seeking to achieve here? Having seen recent pronouncements within government, that remains the question. To answer that question, however, we first need an answer to a much more fundamental question: what is the Government’s intention in relation to the European convention on human rights?”
“I would probably disagree with him both on the definition of the rights and also on the way in which they might be perfected, but I certainly accept his background and his good faith. I hope that the debate in government will not take as its starting point the paper published last year by the former Lord Chancellor, the right hon. Member for Epsom and Ewell (Chris Grayling), which was entitled “British Bill of Rights and Responsibilities”. The right hon. and learned Member for Beaconsfield (Mr Grieve), whom I am pleased to see in his place today, said that that paper contained a number of howlers which are quite simply factually inaccurate. Those who have known the right hon. and learned Gentleman for as long as I have will know that for him such language borders on the intemperate.”
“Secondly, I was pleased that they are seeking to bring forward proposals and not, as in respect of other commitments in the Gracious Speech, legislation. I take it from that that we are in a place where there is still a debate to be had and where thinking is still going on within government, and I welcome that. I hope that today’s debate is an early part of the debate that will be conducted elsewhere, within the Chamber and the Select Committees in this House and the other place, and even within the various all-party groups. I also hope that this debate will, as befits a subject of this magnitude, be conducted in a thoughtful way and one that accepts good faith and differences on all sides. The Minister has a significant background in the area of human rights and I do not question his good faith in this matter.”
“I beg to move, That this House has considered the future of the Human Rights Act 1998. I am delighted to welcome you to the Chair, Mr Betts, and to see that we have a healthy turnout of Members and non-Members here today. I am grateful to the organisations that provided briefings ahead of today’s debate. I should particularly like to place on the record my appreciation of the efforts of Liberty, Amnesty International, and the Equality and Human Rights Commission. The Gracious Speech included a commitment by Her Majesty’s Government to introduce proposals for a British Bill of Rights. I was pleased that it was framed in such terms for two reasons. First, it is still apparently the policy of Her Majesty’s Government that it should be approached at least on a British, if not UK-wide, basis.”
“The situation in Northern Ireland is even more acute, because there the Human Rights Act is the subject of part of the Good Friday agreement. The second part of the “Rights, Safeguards and Equality of Opportunity” section of the agreement states: “The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.” The creation of the Police Service of Northern Ireland and the body overseeing it, the Northern Ireland Policing Board, have given effect to that.”
“Indeed; the time it took to get such cases to court—and the need to have the means to do so—was a glaring injustice, and that situation was affected by the introduction of the Human Rights Act. People needed money, or somebody behind them with the means, to get access to human rights. We should not return to that. On the devolution settlements, the Scottish Parliament and the Welsh Assembly both have the Human Rights Act hardwired into them: their Acts must be compatible with it. It has already been established that if this is to change, at least for the Scottish Parliament a legislative consent motion would be required in accordance with the Sewel convention. Given recent votes in that Parliament, I do not see how that is going to happen.”
“My learned noble friend Lord Lester of Herne Hill recently delivered a lecture entitled “Do we need a new Magna Carta?” in which he spoke about how human rights can be protected by a British Bill of Rights. I will happily send the Minister a copy, if he needs it. If we are to move beyond the Human Rights Act, it can only be done in a way that improves, not diminishes, the protection that is available to our citizens.”
“Let me return to the question: what are we seeking to achieve here? If there is a risk to the stability and sustainability of the Northern Ireland peace process, is it worth it? Either there is a UK Bill of Rights with the widest possible operation or we will end up with different standards of human rights protection applying in different parts of this—I use the term advisedly—United Kingdom. That is not what my party, and other parties represented in this Chamber, campaigned for last September. Human rights protection should be uniform across the whole United Kingdom. I fear that in introducing this proposal the Government have created more problems for themselves than they have realised. I offer the Minister one piece of assistance before I conclude.”
“Indeed. That illustrates perfectly what I say about the Human Rights Act being hardwired into these agreements, including that settlement. Underpinning that, we should remember that many parties on both sides—in both communities—in Northern Ireland took a massive leap of faith when entering into the Good Friday agreement in the first place. Many of them were prepared to take that leap of faith because of the assurances given by the Government about protecting human rights. Let us not forget that the roots of the civil rights movement are to be found in that conflict; for many people, human rights have always been at the heart of that movement. We should also not forget that the peace process remains a very delicate animal, as was made apparent just before Christmas. We should never take its continuation for granted.”
“I say, in passing, that I hope we never get to the stage where the implementation of law by the courts is entirely to the satisfaction of the Government. Surely the problem is that if we get to a point where we have a British Bill of Rights but remain a contracting party to the European convention, which has a higher standard of human rights protection, anyone dissatisfied with their rights as applied in the UK domestic courts under the British Bill could still have recourse to the wider protection of the European Court in Strasbourg.”
“If the consultation is to be carried out in good faith—and, for my part, it always has been—there are sufficient matters about which we should be talking. That would still allow us—if it were necessary, and if it were possible to construct a consensus—to return to the issues on Report.”
“However, the consultation that has been conducted since the publication of the draft clauses at the end of January has highlighted, and generated, a substantial number of important matters, some of which are technical and some of which go to the heart of the issue of taxation itself. I suggest to the Secretary of State that further consideration may be necessary. He has the ability, through the good office that he holds, to bring all the parties together again to consider the representations that have been made during the consultation, and to consider whether, given the complexities and possible areas of conflict that could arise, it is actually worth implementing the tax power in the way that is currently envisaged.”
“As others have said, the genesis of the clause lies in the report of the Smith commission. I have supported the commission since the day, indeed the hour, when it reported, but we cannot ignore the fact that the process was undertaken at great speed. Necessarily, given that five parties were engaged in the process, it involved a degree of compromise all round. It is for that reason that all of us undertook to ensure that there would be consultation following the publication of the report and, subsequently, the draft clauses. In a debate in which consensus is not always easy to come by, I am pleased to note that there is consensus on the fact that the clause is a faithful replication of the agreement that was reached under the chairmanship of Lord Smith.”
“I think I have perhaps a greater commitment to that principle than he has, but I must say in all candour to those on the Treasury Bench that if they are sincere in their belief that risks and rewards should be pooled and shared across the UK, whatever the technicalities this situation should not be allowed to continue. Whether it is done through the review in the new clause or through action in the forthcoming Finance Bill, amendments for the sake of the continued constitutional integrity of the United Kingdom should be produced in early course.”
“The principle that underlines such schemes is fairly sensible—that for public services to pay money back into the Treasury is essentially an exercise in robbing Peter to pay Paul. It only creates work for accountants and achieves no public good. There is a more fundamental principle at stake, however, in the proposal before the Committee and in the new clause tabled by the Labour party. That is the principle that there should be equality of treatment across the board and across the United Kingdom. The hon. Member for Aberdeen South (Callum McCaig) hit the nail on the head when he referred to the pooling and sharing of risks.”
“I rise to say a few words in support of new clause 20, tabled by the hon. Members for Edinburgh South (Ian Murray) and for Caerphilly (Wayne David). When considering schemes such as those that lie at the heart of the new clause, it is worth starting with the principle that underpins them. Is it, as the Financial Secretary to the Treasury suggested, the principle that local government finance should not go straight into Treasury coffers? I can understand that principle and it holds water in so far as it relates to the scheme for police and fire services across the UK, as originally envisaged. The difficulty for the Minister, however, is that there are other schemes of a similar nature that go beyond the ambit of police, fire and other rescue services. The hon. Member for Caerphilly mentioned one related to the national health service.”
“As long as we try to do these things by way of primary legislation, we will keep tying ourselves up in knots and any solution that we bring forward will lack permanence and will be unsatisfactory.”
“The view that was taken then, which as I recall was contained in the claim of right, was that in Scotland the Diceyan version of sovereignty—that Parliament is sovereign—has never been the case, and that sovereignty has always been vested in and remained with the people of Scotland. From that point of view, I see considerable merit in amendment 58 in the name of the hon. Member for Moray (Angus Robertson) and his colleagues in the Scottish National party, requiring that if there were ever to be a repeal of the Scotland Act 1998 it could be done only with the consent of a majority voting in a referendum. That honours and respects the view that sovereignty lies with the people in Scotland. However, even that clause could be got around by a simple repeal, a consequence of the doctrine that Parliament cannot bind its successors.”
“Although matters have moved on somewhat over the years and although it remains the case that Parliament cannot bind its successors, it is undoubtedly the case that since the European Communities Act 1972 we have taken a different view of parliamentary sovereignty, one in which sovereignty is shared with the European Union, as it now is, in Brussels, the Scottish Parliament, the Welsh Assembly, the Northern Ireland Assembly and even the London Assembly. It was the subject of considerable debate during the constitutional convention back in the late 1980s and early 1990s.”
“The permanence of the Scottish Parliament is to be found not in any amendment or statutory enactment, but in the will of the Scottish people. It is a permanent institution because, frankly, it is unthinkable that it would be repealed at this point. For that reason, and given the comments of the Scottish Parliament’s Devolution (Further Powers) Committee, it is right that we should revisit the issue. At the heart of this debate is the issue and the definition of sovereignty. The context is a classic Diceyan definition of sovereignty, which says that Parliament here is sovereign.”
“Amendments 16, 17 and 18 are essentially probing amendments, authored by the Law Society of Scotland. Subject to the response that we hear from Ministers and from those in other parts of the House, it is not my intention to seek to press them to a Division. The amendments change the nature of clause 1 from one that recognises the permanence of the Scottish Parliament to one that declares it. The genesis of the clause was the Smith commission report, which required that there should be a statement in the legislation to follow it that the Scottish Parliament and the Scottish Government were permanent institutions. The form of words in clause 1 was inserted by the draft clauses published at the end of January, which recognised that permanence.”
“I have long held that view. I cannot remember a time in my conscious political being that I have held a view other than that. It is never going to be easy to get to that point, of course, and it will require a fundamental change in the way we do things. The reference to judicial archaeology is interesting, because it would render some of the things that were done in this place reviewable in the courts. As long as there is a proper separation of powers, I am quite happy with that.”
“Indeed, and it is for that reason that I said that I saw some merit in the proposal. The hon. Gentleman would have to accept, though, that the point I have already made—that even that could be repealed by a simple vote in this Chamber and the other place—will always be a problem for any Government seeking to do that by way of primary legislation.”
“It is for that reason that, if we are to have a written constitution, we must first have a constitutional convention, because we will never build the necessary consensus for this sort of constitutional change merely within Parliament. That was the experience with Scotland’s constitutional convention in the 1990s, and it was then the lesson of the Smith commission and, before it, the Calman commission.”
“I actually agree with the right hon. Gentleman on that point. Indeed, I see the Bill as the start of a process that must continue, because we risk putting an intolerable strain on the Union if we proceed with constitutional change that relates only to Scotland and not to the rest of the United Kingdom, particularly in relation to the different parts of England. As far as the future of the English constitution is concerned, the only point on which I am clear is that there is absolutely no consensus on the shape that it ought to take. I stood at the Dispatch Box often enough during the previous Parliament, answering questions from both sides of the House, and being told, “This is what we need”, and I rarely heard the same proposition twice.”
“In order to hold faith with the 55% of the people of Scotland who voted no last September, I think that we should proceed with the Bill with all due dispatch. I do not think that it would be acceptable for the passing of the Bill to be somehow contingent on constitutional arrangements being refined elsewhere in the United Kingdom. I would have preferred—inevitably so—to see included in the remit of the proposed constitutional convention the question of electoral reform, for which I think there is now greater support in the Labour party, but I would not let that omission stand between me and supporting the Bill today.”
“Member for Edinburgh South (Ian Murray) has tabled a new clause proposing a constitutional convention, and there is a great deal in it that I find worthy of support, particularly the requirement that it be convened within a month of the Bill becoming an Act, because I do not think that these matters become any easier by being left. I am also impressed by the fact that it has a reporting date, which I suggest would serve to concentrate minds. Speaking as a Scottish Member, I think that the hon. Gentleman’s proposal has the further benefit of allowing a constitutional convention to go ahead; we would be saying today that it is something that is going to happen, but it would not in fact delay the passing of the Bill.”
“I am heartened by the right hon. Gentleman’s optimism in that regard; I always think that achieving consensus in these matters is much easier to talk about than to get. Frankly, that is a debate that England now needs to have for herself. It is certainly not for us to intervene in it, any more than we would have welcomed the intervention of the English, Welsh or Northern Irish in the constitutional convention discussions of the 1990s. I wish the English every bit as much joy with it as we have had in Scotland with our constitutional debate over the years. The hon.”