PRESERVATION OF ORDER (Hansard, 6 December 1977)

§ Mr. Dalyell
This clause is not simply about the Assembly's Serjeant at Arms, Assistant Serjeant at Arms and badge-holders. If it is to be a five-days-a-week, 37-weeks-a-year Parliament, the number of such officials will not be significantly fewer in the Scottish Assembly than in the House of Commons.
Let us consider the expertise of the Clerks. There are 51 Clerks to the House of Commons. In the Assembly there will be Clerks for Assembly Bills, Clerks for Public Bills and Clerks for Private Bills. The whole purpose of the Assembly is to churn out legislation. The point is that the Assembly is a legislative Assembly. It will therefore need a great many Clerks and parliamentary draftsmen, and parliamentary draftsmen can be a considerable bottleneck. The issue turns on how many Committees are set up and whether they are Select Committees or Standing Committees. If many of them are established, the Assembly will need a lot of Clerks. If few Committees are established and the Committee stages of legislation are taken in Committee of the whole House, fewer Clerks will be needed.

§ Mr. Gordon Wilson
On a point of order, Sir Myer. Is it in order to discuss the question of Clerks to the Assembly? Are they to be entrusted with the preservation of order in the Assembly? Has not the hon. Member for West Lothian (Mr. Dalyell) gone far outside the terms of the debate?

§ The First Deputy Chairman (Sir Myer Galpern)
If the hon. Gentleman will look at Clause 25, he will see that it states: The standing orders of the Assembly may include provision for preserving order in the proceedings of the Assembly". "Proceedings" means the conduct of the business, and, therefore, the Clerks are obviously involved in it.

§ Mr. Dalyell
Being obedient, Sir Myer, I shall move on to ground which I feel is certainly the business of Clause 25. I refer to one particular Committee, the Privileges Committee. The clause states: including provision for excluding a member from such proceedings. I am not trying to conjure this out of the air, because I happen to be one of the very few Members of the House of Commons to have had the misfortune to come before the Privileges Committee. It is a very awe-inspiring experience, and no one who has had it is likely to forget it. My hon. Friend the Member for Bassetlaw (Mr. Ashton) will, I am sure, agree with me. To be cross-questioned, in front of people such as the Leader of the Opposition, by the present Lord Chancellor is no joke, even if one feels that one is morally innocent.
I shall not go into the case in the late 1960s when I appeared before the Privileges Committee. I simply want to say that we ought to examine very carefully indeed—and this is surely the time to do it—precisely what we are setting up inside the Assembly.
In case anyone should think that I am out of order, I repeat the wording of the clause: The standing orders of the Assembly may include provision for preserving order in the proceedings of the Assembly, including provision for excluding a member from such proceedings. Surely this is the place in which to raise the whole question of privilege in the Scottish Assembly. I confidently predict that our Scottish propensity to haul one another in front of a Privileges Committee will be no less great in Scotland than it is in the House of Commons. Indeed, it will probably be greater, because when we are left to ourselves the Scots are a very fractious people. I do not know why this should be the 1208 cause of merriment to the right hon. Member for Down, South (Mr. Powell), because I should have thought that the whole issue of privilege in the Assembly—

§ Mr. Powell
When the hon. Gentleman sits down, I shall show that I take this clause very seriously.

§ Mr. Dalyell
If there is not a Privileges Committee of some sort—it may go under another name in the Assembly—how are disputes to be settled within a subordinate Parliament? There is no easy way round a Privileges Committee. I feel strongly about it because the scars of the episode to which I referred still remain with me. I suspect that similar scars remain with any hon. Member who has had the misfortune to appear before his colleagues at a meeting of the Privileges Committee.
I turn now to a different point, Sir Myer. In the running of an Assembly there are great difficulties when there is a committee system. In his famous letter to the Shetland Islands Council of 23rd November 1977, my hon. Friend the Minister of State said, on page 3: The planning system, which does not fit neatly under either devolved or reserved matters, constitutes a special area in which Ministers must retain what are in essence concurrent powers. The Secretary of State is empowered to intervene, whether or no: a Scottish Secretary has already called in an application, if it raises issues affecting a reserved matter, such as ports, energy, industry or defence. Planning issues affecting matters for which Ministers remain responsible to Parliament have to be settled by the Government, who alone are in a position to have due regard to factors of wider national interest. In the running of any Assembly, Assembly Committees will find that they have a great problem. As is further stated on page 5 of the letter, The Government will in any case retain its powers to give specific grants … and to approve capital expenditure; and these powers could be altered if necessary by further Westminster legislation. I shall not take up any more of my colleagues' time. All I will say is that it is a terrible shame that we are faced with a guillotine. If I have been itsybitsy and incoherent, I do not apologise for it. It is simply that there is no time in which to explain properly issues of very real substance. The issue of privilege is one that simply cannot be swept under the carpet.

§ Mr. Powell
This is a very remarkable clause indeed, and the hon. Member for West Lothian (Mr. Dalyell) is quite right in saying that we ought to have time maturely to consider its implications—why it is here at all, what would be different if it were not here at all, and its general effect. I hope that I may remain in order in taking it—in this respect only, that is—in connection with the next clauses which follow. In this and in subsequent clauses in some cases we are saying that the Assembly may make standing orders. In others we are saying that it shall make standing orders.
My first question is: can the Assembly make standing orders only on those matters on which this Bill either permits or instructs it to? If it can do so on other matters, what is the point of permissive clauses such as this one? The natural deduction is that, unless it is expressly permitted to make standing orders on the subjects mentioned, it cannot make standing orders at all.
I can understand the purpose of clauses which say "shall make a standing order", but unless the power is limited to whatever is permissive or mandatory in the Bill I do not see the point of a permissive clause. It will be a funny set of standing orders which is limited to what is laid down permissively or mandatorily in this and the following clauses.
Is the purpose of the clause to protect the Assembly from proceedings in the courts? Is the reason for Clause 25 that if it were not there and the Assembly made standing orders under which it could exclude a Member from its proceedings, that Member would have a remedy outside the Assembly in the courts? I assume that is so, but it is important if it is so, and I think that we are entitled to an explanation of the effect in that respect of this clause.
The clause refers to provision for preserving order in the proceedings of the Assembly, including provision for excluding a Member". This presumably means that it cannot make standing orders which cover the exclusion of a Member except in the interests of preserving order. May that be confirmed? If that is so, it means that the Assembly will not have the power to exclude a Member, apart from Clause 1210 26, for any reason whatsoever but that of preserving order in the proceedings. There can be no question of turpitude or of any behaviour short of disqualification under Clause 9 or Clause 26. There can be no question of a Member being excluded in any of those circumstances.
I now come nearer to the subject matter of the hon. Gentleman's speech. I refer to the relationship between the proceedings of this Assembly and its control over those proceedings, and the situation of the House of Commons. We ought to dwell upon that. The privileges and powers of the House are not exclusively connected with its legislative capacity, but I think that most hon. Members would say that they were highly germane to its legislative capacity, and that we would be a poor legislative assembly if we did not possess those rights and privileges. I think that I am being realistic in venturing to say that in the Bill we are transferring part of the legislative power of the House in a part of the kingdom to another Assembly. It is therefore relevant for us to inquire what rights and privileges it is envisaged that the Assembly will possess.
It has been stated—I think not without justice—that the nearest thing that this country has to a written constitution is a combination of the Standing Orders of the House of Commons and "Erskine May". Indeed, those are the only ultimate safeguards which, lying within the control of the House, are solely within the power of the House to extend, to confirm or to limit, so that in that sense it is true that the ultimate recourse of the citizens of this realm is to the House and to the manner in which it conducts its proceedings.
We are, of course, sovereign over our own procedures. We are also sovereign over our own discipline. We can punish or expel a Member without reason shown if we wish to do so, and without recourse to any external authority. If there were any recourse to an external authority, then, sure enough, our independence would be gone. It is the fact that nothing which happens here and nothing that we do can be called in question outside, which gives us our supreme legislative competence and our supreme ultimate power over the Executive.
We ought to be told very clearly to what extent, if any, such privileges are 1211 expected to belong to the subordinate legislative Assembly that we are setting up. If, as my untutored reading of this and the following clauses suggests, it is that anything that is not guarded in these clauses is open to challenge outside the Assembly, we ought to understand—and so should the SNP—that it is a very different kind of legislature that we are establishing.
If any hon. Member were to ask me or other opponents of the Bill "What are you complaining about? You do not like these powers being devolved at all. Why do you complain when we discover that they are devolved to an Assembly that is weak and vulnerable in a way that we are not?", I should reply "I am very tender of the manner in which the power to make laws governing the citizens of any part of this kingdom is exercised".
If the power to make laws is to be exercised by a body which in the respects I have mentioned is open to the censure, interference, discipline and overruling of external bodies, I think that we should know and we ought to take it into account before we proceed further with the Bill. It is not really the rights of the Assemblyman that we are concerned with. If that was all we were concerned with, I would not be troubling the Committee. It is the rights of the citizens of Scotland who will live under the laws which it is envisaged will be made by this Assembly that we are concerned with. That is why we ought to be very careful to understand entirely what kind of Assembly we are setting up.
Although this is only a three-line clause, I hope that the Government will not underestimate its importance. I hope that the Minister of State, if he is to reply to the debate, as is his wont, will deal very carefully with the implications of this and the other clauses and throw as much light as he can upon the Government's view of the status of the Assembly and its Members.

§ Mr. Nicholas Fairbairn (Kinross and West Perthshire)
The clause gives me concern, as it does the right hon. Member for Down, South (Mr. Powell). I find it very difficult to understand what it means. Presumably it means that the standing orders of the Assembly may include provisions for preserving order. Presumably 1212 there may be no provision for standing orders and the Assembly is entitled to have no provisions for keeping order and no provisions for exclusion.
On the other hand, the Assembly "may" provide for keeping order and "may" provide for exclusion only on the basis that it is contrary to order. Presumably, therefore—this is the implication of what is for once simply a statutory sentence—if provisions are made for the exclusion of persons who are said to be not preserving order in the Assembly, that is a basis upon which one can exclude them.
7.30 p.m.
Therefore, for instance, if we wish to exclude a member from the Assembly for whatever reason—that he says things that we do not want to hear—we can adopt the attitude that is frequently adopted in those great cathedrals of free speech, the universities, which have characterised the right hon. Member for Down, South and others as persons who necessarily and always offend order. Whenever such persons turn up to speak their audiences at such institutions scream and yell and say that they are persons who should always be excluded. That is what the clause says. That is the only basis upon which one can exclude, and that is the basis upon which the orders that may be made will compel exclusion. I find that a very dangerous inference.
There is another thing which I do not think has been understood sufficiently but which should be understood. This is not a very big clause. Some hon. Members may not think that it is a very important clause and some may not even understand it, but let us not forget that the change in the British constitution which we are arguing here in this High Court of Parliament will be voted upon by a jury in Scotland that represents one-eleventh of those whom it will affect.
If we went to the most informed and intelligent person in Scotland, we would discover that he had no idea of what the argument is. The Press cannot give it to him in two lines and the media cannot give it to him in two minutes, or whatever time they have. The argument is being debated before those who are entitled to be in the Strangers Gallery. There are very few of them; it is not full. There are usually three Members 1213 on the Government Front Bench, less than half a dozen hon. Members behind it, and perhaps 30 or 40 hon. Members on the Opposition side of the Committee. It is they who have to decide whether the argument is right and answer the questions of those among whom the argument is unknown and is not heard.
This Committee stage should be transferred to Scotland, so that those who will have to judge the issue could listen to it. We should not need a very big church hall, because there are only 10 Labour Members and 40 Opposition Members present. [Interruption.] I think the hon. Member for South Ayrshire (Mr. Sillars) said that they are all in Argentina. Not yet.
But let us be clear. Even on so simple a clause as this, there is an important argument of principle which will not be known to those who will vote "Yea" or "Nay" when we have voted upon the clause.

§ Mr. Younger
I shall not detain the House for more than a moment. As we have moved on to the detail of the Bill it has become crystal clear what a devastatingly bad thing it is to be working under a timetable. It is fair to say that this section of the Bill, relating to standing orders, is a dog's breakfast. I do not know upon what basis the provisions have been written into the Bill. As has been said, there seems to be very little rhyme or reason as to which provisions contain a mandatory entitlement and which are permissive.
I hope that when the Minister replies he will bear in mind that as we are working under a timetable he is not able to be put under the pressure that Parliament ought to put him under. But it is clear to me that this section, dealing with standing orders, must be fundamentally re-examined.
I can see no arguments for saying that these two items should be given a permissive "may". There is no rhyme or reason about it. If the provisions "may" be put into standing orders, what on earth is the point of writing it into the Bill? The Assembly is free to do as it wishes.
In spite of the fact that the Minister has a timetable motion at his back and he can get away with anything he likes, 1214 I hope that he will take back this part of the Bill, which is a dog's breakfast, and think it out again.

§ Mr. John Smith
I find it a little surprising that the hon. Member for Ayr (Mr. Younger) should describe this clause as a "dog's breakfast". I note his comments about working under a timetable, but I take it a little hard that some Conservatives should be constantly reminding us of the fact that we have a guillotine. They have voted for the guillotine, as I have myself on many occasions. The Opposition voted for it, for example, on the European Communities Bill—

§ Mr. Powell
indicated dissent—

§ Mr. Smith
I exempt the right hon. Member for Down, South (Mr. Powell) from that charge. I know that he did not vote for the guillotine on that occasion. I was dealing with the smaller fry from Ayr.
My hon. Friend the Member for West Lothian (Mr. Dalyell) raised again the question of what the Scots are like. He ascribes great national characteristics to us. I am no greater expert on the Scottish character than he is. He says that we Scots are fractious. I take the view that we are no different from people in any other part of the United Kingdom. I suppose that my hon. Friend absorbed that sort of idea when he was at Eton and Cambridge. Fortunately, I had a Scottish education. Therefore, perhaps I am nearer the mark when it comes to judging the Scottish character. If my hon. Friend insists on setting himself up as a judge of the Scottish character, I might suggest that he would be better equipped to do so had he been educated in Scotland.

§ Mr. Fairbairn
At the schools which the Minister attended, he learned to be unctuous.

§ Mr. Smith
Maybe if I needed that capacity to be refreshed I could listen to hon. Members from time to time. I believe that the Scottish people are level-headed and responsible and that they will make a great success of the Assembly and the democratic opportunity that it presents. I hope that hon. Members will not mislead the Committee on an unfair assumption of the Scottish people's capability.

§ Mr. Dalyell
But the substantial issue is this—and I suspect that we are no more and no less fractious than anyone else. Are we really saying that the Assembly does not need a Privileges Committee? If that is so, how will it settle disputes, as disputes are bound to arise from time to time? Will the Assembly have a Privileges Committee, and, if so, what form will it take?

§ Mr. Smith
That is largely a matter for the Assembly, and I shall come to that in a moment.
The right hon. Member for Down, South raised the question of "shall" and "may" and the effect of these terms. Where the word "shall" applies, there is an obligation on the Assembly to include a provision in the standing orders. Where the word "may" applies, the Assembly is not bound to follow the provision and does not have to implement it. "May" is merely an indication of what Parliament thinks is appropriate for inclusion in the standing orders, but the Assembly will not be compelled to follow it.
I must make it clear that the Assembly will not have parliamentary privileges What we are doing in setting up the Assembly is delegating certain legislative and executive powers to the Assembly and Administration in Scotland. We are not devolving sovereignty, and there is no question of parliamentary privilege attaching to the Assembly.
In Clause 8(1) of the Bill, a procedure is provided for the Assembly to regulate its standing orders. In Clauses 24 to 29, the particular provisions of the standing orders are highlighted in the Bill. Some have to be made obligatory on the Assembly and other are left on a "may" basis. This is an indication from Parliament to the Assembly of what it is expected to provide.

§ Mr. Fairbairn
Is the Minister suggesting that the "may" clauses are an indication to the Assembly of what it should do? If, however, the Assembly has the total power to do whatever it likes, regardless of the clause, what is likely to happen?

§ Mr. Smith
I have been making a distinction between "shall" and "may" There are certain provisions that we believe are absolutely essential. There are others which, we have made clear, we 1216 think should be provided but which are not obligatory on the Assembly. By and large, we are leaving a great deal to the Assembly about the way in which it conducts itself once it has been established. To provide a great amount of detail for all the provisions is not a very sensible approach. We are making the assumption that the Assembly will be composed of reasonable people just as we have reasonable people in the House of Commons. [Interruption.] I believe that the House is a very responsible institution, despite what some hon. Members may think, and I believe that we can make the same assumption about the Scottish Assembly.
The right hon. Member for Down. South raised another point about the expulsion of a Member. In Clause 25 there is no reference to expulsion but only a reference to the exclusion of a Member from the proceedings.
I wonder whether the hon. Member for Ayr believes that every provision should be a "shall" provision which would be obligatory on the Assembly. The Assembly may choose to make other standing orders about matters that are not referred to here. It is desirable that Parliament should lay down some provisions that are obligatory and others that are desirable.

§ Mr. Brittan
Does the Minister agree that normally the provision in a statute that any particular body may do something implies that in the absence of such a provision it may not do that thing? Is it not misleading and somewhat contrary to normal parliamentary procedure, instead of conferring the permission which would otherwise be required, to give useful hints for standing orders rather than to specify legislative requirements?
Secondly, will he explain what would happen if the Assembly refused to pass a standing order that was said to be mandatory? Would the sanction be that legislation that was subsequently passed would be void and of no effect? If not, what is the alternative sanction?

§ Mr. Smith
I have made my position clear. The Assembly is in a different position with "may" provisions than it is with "shall" provisions. I do not think it is necessary to go any further than that. The words "may include" are an indication to the Assembly that this 1217 provision should be included. If we did not work in this way, we would have "shall" provisions everywhere.
It is perfectly clear that any sensible Assembly will make such provisions; there is an obvious stock in trade of standing orders. If it does not follow up a "shall" provision, it will be breaking the law as it is laid down in the Bill which I hope will become an Act. The Secretary of State would be able to require it to make the Standing Order or fill the gap. Once this Act of Parliament has passed through Parliament, he will be able to do this because the Bill says that the Secretary of State will have powers and he can deal with it.
The right hon. Member for Down, South said that we should not underestimate the importance of the clause. I have no intention of doing so. On the other hand, it is possible to overestimate the provisions of the clause. I think that there is no question but that the Assembly will abide by the provisions in the standing orders. It is essential that some form of standing orders should be established, and we have set out particular points, some obligatory and some optional on the Assembly. Bearing in mind that there is no parliamentary privilege and the Assembly is subordinate to this Parliament, I do not think that any suggestion has been made that there is a better way of going about this.

§ Mr. Powell
If Clause 25 were not in the Bill, and if standing orders were nevertheless made for excluding a Member on grounds of order, would that Member have an external remedy? The hon. Gentleman has already said that the Assembly will have no privilege, but will the standing orders of the Assembly protect the Assembly against external remedies against its actions?

§ Mr. Smith
I must confess that I do not know the answer to the right hon. Gentleman's question. I think that it involves an examination of the law. I am not in a position to give an answer. I shall endeavour to establish it. I shall communicate with the right hon. Gentleman. It is difficult to envisage what legal remedies might be open to a Member of the Assembly in the situation that the right hon. Gentleman poses and the protection that might be available. It is a 1218 bit much to expect a Minister to give a legal opinion off the cuff on such a matter, but I shall ensure that the right hon. Gentleman receives an answer from me.
I believe that this is a sensible clause. We are debating whether it should stand part of the Bill. The debate has widened somewhat, but I am happy to talk about other clauses in the spirit in which the debate has been conducted. I submit that it is sensible for these provisions to form part of the clause, and I hope that the Committee will agree that the clause should stand part of the Bill.

§ Mr. Grimond
Perhaps the Minister of State will say a further word about privilege. Is the Assembly to have no privilege? Surely it will have qualified privilege.

§ Mr. Smith
It is a difficult matter. I am talking about parliamentary privilege. It will have absolute privilege in respect of defamation, for example. With respect, the right hon. Gentleman has raised a different matter. Provision is made in the Bill. The Assembly will have the same privileges as the House of Commons.

§ Mr. Brittan
Clause 16.

§ Mr. Smith
As the hon. Gentleman reminds me, that is provided for in Clause 16. I was talking about parliamentary privilege as the matter had been raised, quite reasonably, by the right hon. Member for Down, South. I hope that I have given him a clear answer to that if not to everything else.

§ The First Deputy Chairman
The Question is, That the clause stand part—

§ Mr. Younger
I shall detain the Committee for only a few seconds. The Minister of State was honest enough to say that he could not answer one of the questions. With respect, he has not answered the other questions. I ask the hon. Gentleman to make a point of writing to answer the other matters.
First, what will happen if the Assembly fails to carry out one of the instructions that it "shall" put a certain matter into standing orders? Under what provision of the Bill would the Secretary of State be able to compel the Assembly to do that?
1219 Secondly, if these matters have been selected as permissively to be included in the standing orders, surely the provision of two particular matters implies that other matters that could have been so required are not able to be written in at all. By writing in one, the hon. Gentleman is automatically saying that others cannot be included.
Thirdly, will the hon. Gentleman give a proper and firm answer to the question which has been raised concerning exclusion on the ground of creating disorder? If that measure were not in the Bill, could not the Assembly do precisely that? Would not that be a perfectly satisfactory solution? This has been a most unsatisfactory debate.

§ Mr. John Smith
I am sorry that the hon. Gentleman takes that view. No doubt he feels that he should display his diligence as a former devolutionist who is now part of the team which opposes the Bill. He is making rather a meal of these issues. He probably thinks that they are more important than the other matters that we are coming to discuss.
I said to the right hon. Member for Down. South (Mr. Powell)—[HON. MEMBERS: "Answer."] It is important to remind the Committee that the hon. Member for Ayr (Mr. Younger) has been quite a keen devolutionist. He has shared platforms with me to argue the case for devolution. I do not mind being criticised by the hon. Gentleman, but it is only right to remind the Committee of the hon. Gentleman's earlier attitude towards devolution.
I do not know the answer to the question posed by the right hon. Member for Down, South but I shall actively seek to establish the answer. As for the other matters raised by the hon. Member for Ayr, I am rather surprised that he does not come forward and say that we should insert "shall" provisions. It would be open to him to table amendments that would make these provisions mandatory.

§ Mr. Brittan
It is the Government's Bill.

§ Mr. Smith
We have a responsibility for the Bill, but it is open to the Opposition, as well as those on the Government Benches, to table amendments to improve it. One of the Government's responsibilities 1220 is to explain the Bill, and that is what I am endeavouring to do. As for the Assembly's standing orders, if we were to make certain matters incumbent upon it, I can imagine all sorts of possibilities arising.
I believe that the clause will ensure that the Assembly will have sensible standing orders, but these are largely matters for the Assembly to decide. I cannot believe that it is necessary to give it a complete kit that will cover everything that is likely to arise. I believe that it will be a sensible body. I see no reason to think that it will not behave sensibly.
I do not know whether the Assembly will be as fractious as my hon. Friend the Member for West Lothian (Mr. Dalyell) believes. I do not know whether my hon. Friend will stand for the Assembly. His standing is not beyond possibility. If he is elected, the Assembly might be rather more fractious than I anticipate. However, I believe that it will behave reasonably and that the clause includes a perfectly reasonable provision. I hope that the clause will stand part of the Bill.

§ Mr. Dalyell
Surely it would be best if from now on we chose to forget each other's past. I have here an article of 19th August 1974 about Mr. John Smith, MP for North Lanark. It states that my hon. Friend claimed that members of the party who were pressing for devolution to a Scottish Government without the loss of the office of Secretary of State and a reduction in the number of Scottish MPs at Westminster were being dishonest. From now on, Sir Myer, do not you think it would be best—

§ The First Deputy Chairman
Order. We are not going to widen the terms of Clause 25.

§ Mr. Smith
With respect, Sir Myer, I think that I am entitled to answer my hon. Friend. Before I do so, I remind him that in October 1974, when he was chairman of the Scottish Labour Group of Members of Parliament, he complained that the Government were not speeding up proposals to bring devolution before the House of Commons.

§ Mr. Dalyell
We all have a past.

§ Mr. Smith
And that is no bad thing. My hon. Friend is adept at stating the obvious. We all have a past. I hope that hon. Members will not stick rigidly to their positions on constitutional matters. It is extremely important that we have a lively and developing dialogue. I hope that, as the Bill proceeds, some of the scales that afflict some Opposition Members in their blind opposition to devolution will drop from their eyes and that they will be persuaded of the merits of the Bill. I hope that when that happens they will be big enough to admit that they were wrong before and were persuaded by the Government in Committee