HC Deb 06 December 1977 vol 940 cc1143-57

Amendment proposed [30th November]: No. 371, in page 11, leave out lines 11 to 18.—[Mr. Brittan.]

Question again proposed.

The Chairman

I remind the Committee that we are also discussing Amendment No. 383, in page 11, line 20, leave out 'subsection (6) above' and insert 'this section '.

Mr. Graham Page (Crosby)

In the usual terms of expressing the length of a speech in the House, I find that I have been on my feet for nearly six days, which seems to be one way of defeating the guilltoine.

This is an important amendment, but I shall not detain the House for very long in rounding off what I was saying on the last occasion. The amendment to which I want to address my remarks is No. 371, although we have also been discussing Amendment No. 383. Amendment No. 371 seeks to remove subsection (6) from Clause 22. It is subsection (6) that seeks to abolish for Scotland the oldest and most established form of subordinate legislation, the Order in Council, which is used up to the present day. For example, in Acts passed in the last Session of this Parlament provision was made for subordinate legislation by Order in Council.

The Order in Council is well described in Halsbury's "Laws of England" as the general medium by which the manifold statutory powers conferred upon the Crown are exercised, though they may also be employed in expressing the wishes of the Crown with regard to matters falling within its discretionary authority by virtue of the prerogative. Indeed, in a well-known textbook on the subject, Wade and Phillips on "Constitutional Law", Orders in Council are described in this way: By means of Orders made by the Sovereign, by and with the advice of the Privy Council, are exercised the prerogative and statutory powers of the Crown. Thus an Order in Council is used for two purposes: for the Crown to legislate when it has been given the power to do so by statute, and for the Crown to legislate within the Prerogative. Usually, when there is subordinate legislation, one can point to a statutory authority for it—certainly when a Minister or Secretary of State legislates—but in many cases the Order in Council is used for subordinate legislation, which is by the Prerogative and not authorised by statute.

4.15 p.m.

Under this subsection of Clause 22, we are dealing only with powers given to the Crown by statute and not the use of the Order in Council where the Crown is acting purely on the Prerogative. There will, therefore, be this anomaly. The Order in Council used in Prerogative matters will still remain to be recommended by the Secretary of Sate in our Parliament here. In the several groups of devolved matters in Schedule 10, there may well be some matters which are subject to Order in Council not under any statute but under the Prerogative, such as some educational establishments, local government charters, foreshore rights, fisheries, charities, markets and fairs and, in some cases, tribunals and inquiries. If the Order in Council is to be used in those cases, I suppose that we shall have the Secretary of State here recommending to Her Majesty, and in other cases the Scottish Secretary. That gives us one anomaly out of Clause 22(6).

The second difficulty concerns the mysterious master order for which provision is made in subsection (6). Her Majesty by Order in Council—in this case it will be by advice of the Secretary of State here, because the order will come before the House of Commons under subsection (7) on an affirmative resolution—may "make provision for securing" that certain other powers at present exercised by Order in Council shall be exercised in future by the Scottish Secretary.

What is intended by make provision for securing that"? Frequently, the interpretation has been that the Secretary of State may delegate to some other person the power to say that this, that or the other order shall be subject to the relevant provisions. The wording in this subsection could have been that the Order in Council should specify the subjects which in future shall be within the jurisdiction of the Scottish Secretary, not may "make provision for securing". By the use of these words, the master Order in Council could give to the Scottish Secretary the power to usurp the powers of the Crown merely by saying "Hey presto, in future I will exercise the powers of the Crown" without specifying them.

On any occasion the Scottish Secretary could make the decision. He is not even required to make the decision by any order. If the mysterious master order, as I have called it, said that the Scottish Secretary shall decide on what occasions he shall have the power to exercise the right which is at present in the Crown by Order in Council, that would be making "provision for securing". If this subsection is to stand, those words must be made more definite and firm.

The third matter—this is the final point that I wish to make—is that the significance of an Order in Council is that it is made under a power given to the Crown on the advice of the Privy Council, or, rather, on the advice of that Committee of the Privy Council which we know as the Cabinet. The Order in Council is not made on the advice of any particular Minister, although in practice it may be; but the point, as I see it, of providing for an Order in Council to carry out subordinate legislation is that it shall be an act of the Government as a whole.

We are well acquainted with the present Government's contempt for the convention in the constitution that there is collective responsibility in the Cabinet. I suppose that we should not be surprised that the Government have taken the responsibility in this Bill to enshrine their view that no longer shall there be collective responsibility of the Cabinet in coming to any decision, at least as far as concerns Scotland.

It is an important constitutional point. The choice, which has frequently been used in recent Bills, of an Order in Council is made, I believe, in order to show that the act is of the Government as a whole. When, in this subsection, it is said that in certain cases in future it shall not be an act of the Government as a whole but an act of a very subordinate Minister—the Scottish Secretary—a substantial change is made to the constitution. That change is so vaguely worded in the subsection that one cannot be certain either what change is being made or how it is being carried out. I beg the Government to think again about the subsection and to take it away and redraft it if they are determined to make the constitutional change. But I should prefer to see it not brought back.

Mr. J. Enoch Powell (Down, South)

The right hon. Member for Crosby (Mr. Page) has done the Committee a service by brushing away some of the debris which concealed the nature of subsection (6). That subsection is like a manhole cover. When one lifts it up, one finds a very deep hole underneath. In fact, in a Jules Verne-type of way, it is such a deep hole that, like most other amendments to the Bill which have been put forward, it leads down into the very heart of the matter.

One understands what the subsection is designed to do and why the Government have been forced into the extra ordinary position—its extraordinary nature has been made clear by the right hon. Member for Crosby—of saying that an Order in Council, when it relates to Scotland, shall not be an Order in Council at all but shall be treated as if it were a ministerial order. We then find that it is not a ministerial order but an order of a Scottish Secretary, which is a type of twofold process of degradation. The word is not meant to be opprobrious, so the Minister of State need not take offence.

The reason why the Government are in this difficulty is that they do not propose at present to create a Scottish Privy Council. Of course, when Home Rule for Ireland was enacted in 1914, an Irish Privy Council was established. If we had done that for Scotland, in the Bill, no doubt there could have been order by Order in Council as well as order by ministerial order, as proposed in the Bill at present.

However, the Government stepped back from the implications of that course and by doing so they brought before the Committee the curious nature of this animal, the Scottish Secretary, who is not a Minister of the Crown but will behave exactly as a Minister of the Crown, using the Secretary of State—and we have explored that on previous amendments—as a sort of channel of the Royal Prerogative at one remove.

But when the Government came to Orders in Council, they found that they implied Her Majesty's Ministers, the members of Her Privy Council, advising her to make an Order in Council. Since that was not, at present, what they were going to do in the case of Scotland—I am sure that hon. Members of the Scottish National Party will take an interest in this—they produced this double barrier, as it were, between the Crown and Scottish Ministers, as they really are, so that the true nature of those Ministers should be obscured.

This is one of those shams in the Bill which, even if it survives in the measure, will not long survive its implementation. It is an excellent thing that we should be obliged to take note of it at this stage. Indeed, this is exactly the sort of amendment that reminds us how atrocious it is that we should be dealing with these matters of deep constitutional import under the irregularities of a guillotine.

I conclude by saying that the Union is not a Union of Crowns. Members of the SNP continually say—I am not impugning their sincerity, which I am sure in this matter is total—that they look forward to their Scotland being a Scotland under the Crown. But it will be a different Crown, of course, because the unity of the kingdom under the Crown is a parliamentary unity, and that unity is also expressed in the Privy Council, which is a Privy Council responsible to the Treasury Bench, to this House representing the whole United Kingdom, and thus to the electorate of the United Kingdom.

In this small and apparently technical subsection we find that the Government are doing the splits over a gap between a form of devolution which would not be inconsistent with the unity of the kingdom, the parliamentary unity of the kingdom, and the form of devolution which they have, which will inexorably take them in the opposite direction. It will take them towards the creation of Ministers and the recognition of Ministers as Ministers of the Crown, the creation of a Privy Council for Scotland, and all the appurtenances of a national Parliament and Government, which is what the Prime Minister, introducing this Bill in the previous Session, indicated was the motivation behind the Bill.

Mr. Donald Stewart (Western Isles)

I should like to hear the right hon. Gentleman's comments—no doubt it has crossed his mind—on the situation that existed between 1603 and 1707 in the United Kingdom.

Mr. Powell

Yes, indeed, that was a personal union. It was similar to the union between the United Kingdom and Australia. I say that perhaps by closer analogy than the union between the United Kingdom and Hanover, which was carefully entrenched and limited in various ways.

In the Commonwealth today there is a personal union of what are many Crowns, but when we talk of the unity of the United Kingdom, the union which my hon. Friends and I were sent to this House to proclaim as the desire and intention of the people of Northern Ireland, it is a parliamentary union—a union which has subsisted with Scotland from 1707, and with Ireland from 1800. Those two things are entirely different animals, and this amendment and the speech of the right hon. Gentleman are useful reminders of the ambiguities which the Government are incurring by the present state and stage of their Scottish Parliament and Government.

4.30 p.m.

Mr. Small

I would think that in the hinterland of his consciousness the right hon. Gentleman would recognise the reality of what we are discussing in the clause. May I put it in this way, from the Delphin Classics of the past? The Latin scholars who prepared them did so "In usum Delphini", meaning for the use of the Dauphin. The substance of the clause means "for the use of the Queen".

Mr. David Price (Eastleigh)

I wish briefly to support my right hon. Friend the Member for Crosby (Mr. Page) and the right hon. Member for Down, South (Mr. Powell) on an extremely important point, which was not really resolved in our earlier debate. I refer to the myth that there is a curious animal called devolution which does not go to the full extent of Home Rule. As we proceed through the Bill, we come up against this point the whole time, which seems to me to remain unresolved.

If the Government are right, and sovereignty is retained by the United Kingdom Parliament, surely, in the case of the subordinate legislation covered by this clause, there is no need for any amending legislation. The Privy Council will act as it does today and can, in making an appropriate order, limit its scope to Scotland. Alternatively, one can work up from the other form of delegated legislation, which is the local authority's ability to make byelaws, and so on. The Government could have built on that, the other way up.

But the dilemma in which the Committee finds itself arises from the whole structure of the Bill. As hon. Members know, I am one of those who would be interested to listen to the argument for full Home Rule for Scotland. I am open to be persuaded. But, as I said on Second Reading—as we go through the Bill my reasons become more and more apparent—I am not persuaded by this curious hybrid, which will satisfy nobody and will introduce "aggro" and dissension between the various parts of the realm. This amendment, spoken to so ably by my right hon. Friend, draws further attention to that.

Even if the Government are right in their strategic construction of these arrangements, which I continue to oppose, this subsection is unnecessary. The present powers of the Privy Council are perfectly adequate to deal with the situation. If the Government say that those powers are not adequate, they must in the end admit that Mr. Gladstone was right. They have denied it all the way through, and the present Leader of the Liberal Party has denied the necessity of following his distinguished predecessor. I think that the right hon. Member for Orkney and Shetland (Mr. Grimond) will appreciate my point.

Because of the guillotine, we hurry through the Bill and much of it is not adequately discussed, but I ask the Minister of State to comment on this. Subsection (5) of Clause 18 is closely relevant to my argument. There one reads these words: Every Scottish Assembly Act shall be judicially noticed. I am no lawyer, but I have enough familiarity with the law to know that that is a most peculiar phrase. An Act of Parliament either is or is not an Act. Are we to take it that under Clause 22(6) this order-making power of the Privy Council should be "judicially noticed"? Are we adopting some such words as "Prisoner at the Bar, the court judicially notices that you hit your old woman over the head"? Where are we? That is the exact parallel, in delegated legislation, to giving the Privy Council the sort of power that is "judicially noticed".

We are wasting the time of the Committee. The firemen are on strike and we are doing nothing about it, but here we are, proceeding with this nonsense. If the Government believe that we should have Home Rule for Scotland, let them come forward with it. This subsection and the subsections that we shall discuss later today continue to highlight the fact that this is technical nonsense.

I beg the Government to withdraw the Bill. If they want Home Rule, they must do it cleanly. I am sure that the Scottish National Party would support them. I am astonished, because I have great respect for the position of SNP Members, that they are prepared to go along with this nonsense. My right hon. Friend, as he always does, because he is a great tiger for the constitution in these matters, has drawn attention to this, which is not even a Highland wildcat, it is a tabby pussycat.

The Minister of State, Privy Council Office (Mr. John Smith)

The hon. Member for Eastleigh (Mr. Price) asked "where are we?" We are dealing with Amendment No. 371, which was moved by the hon. Member for Cleveland and Whitby (Mr. Brittan) and not by the right hon. Member for Crosby (Mr. Page), but perhaps the hon. Member for Eastleigh was not with us when the hon. Member for Cleveland and Whitby moved the amendment, I believe in the closing hours of our debate last Wednesday.

The purpose of Clause 22, as I believe the hon. Member for Cleveland and Whitby accepted when introducing the amendment, is to devolve to the Scottish Administration full powers to make subordinate legislation under existing Acts of Parliament which relate exclusively to a devolved matter. The transfer of these powers would be incomplete if the powers at present exercisable by Her Majesty by Order in Council were not included.

The right hon. Member for Down, South (Mr. Powell) gave us one way—he touched on this briefly and did not lend his support to the proposition—and mentioned the possibility of a Scottish Privy Council. I think it was last Wednesday that the hon. Member for Cleveland and Whitby suggested, as an alternative to the arrangements in the Bill, a Governor-General.

I believe that the proposals in the Bill are a perfectly satisfactory way of dealing with the matter. The establishment of a Scottish Privy Council or a Governor-General for what is a relatively small problem is taking the matter completely out of scale.

The right hon. Member for Down, South has a brilliant talent for dramatic language and the use of the adjective. I should not have thought that this was a manhole cover leading down into the heart of the matter. We find that every time a small provision is debated Opposition Members are anxious to go back to the principle behind the Bill. I take no objection to that. If they want to discuss the principle of the Bill, I am happy to do that from now until we reach the end of the Committee stage, but I have an obligation to the hon. Member for Cleveland and Whitby, who put forward a much more precise argument when he moved the amendment, to deal with the argument that he presented rather than with the matter of principle to which we keep returning.

There are two ways in which we could have dealt with the subordinate legislative powers which are at present exercisable by Her Majesty by Order in Council in the devolved areas. We could continue to have Her Majesty involved, with the associated parliamentary procedure transferred from Parliament to the Assembly. Such a change would mean, for example, that after a draft order had been approved by the Assembly it would have to be submitted to the Secretary of State who in turn would submit it to Her Majesty for approval.

The Bill does not provide for a direct link between the Scottish Administration and the Crown, as the right hon. Member for Down, South recognised. We see no need for that. It is clearly understood that the Assembly is a subordinate Assembly. Parliament remains sovereign, and the Scottish Assembly has delegated to it not sovereignty but powers in certain areas which are defined in the Bill. We therefore think it appropriate that dealings with the Crown should be carried through Ministers of the Crown.

Taking that view, if we continue to have Her Majesty involved, we shall need to have the Secretary of State as a link submitting the draft order to Her Majesty for approval. The alternative, which we have reached in the Bill, is that Orders in Council can be converted into orders which are made by a Scottish Secretary under his own hand, without reference to Her Majesty. That is the approach adopted in the Bill.

Mr. Dalyell

Let me be quite clear on this. A person who would be called Prime Minister of Scotland would, when Her Majesty visited Scotland, have no direct relations with her. Is that a proper understanding?

Mr. Smith

With respect to my hon. Friend, that question, like many of his questions, has nothing to do with what the Committee is discussing. What might happen if Her Majesty visits Scotland is a matter on which I cannot speculate. There is no such creature as the Scottish Prime Minister. Such a position is not provided for in the Bill, and I cannot answer hypothetical questions about imaginary individuals whom we are certainly not proposing to establish. If my hon. Friend continues to make these interventions, it will, on the whole, be more helpful to the Committee if he concentrates on the precise matter that I am obliged to consider in defending the Government's position on amendments moved from any part of the Committee.

It is necessary, if we are converting the Orders in Council into orders made by a Scottish Secretary, to have an Order in Council to transfer the powers. I think it is sensible that the existing Orders in Council—there are not many involved in this—should be converted to orders by the Scottish Secretary. There are very few powers. They involve provisions such as Section 5 of the Burial Grounds (Scotland) Act 1855 and Sections 17 and 18 of the Development of Tourism Act 1969. We are not dealing with a large tract of powers. Most of the powers that are exercisable under devolved areas stem from Acts of Parliament under Statutory Instruments, and we deal with them under other parts of the clause. Therefore, to try to make a major constitutional issue out of this, as the right hon. Member for Down, South gently did—he did not push it too far, but he hinted gently that there was some major constitutional provision here—is, I think, stretching the imagination a little.

Mr. Leon Brittan (Cleveland and Whitby)

Will the Minister of State give way concerning this point, which I mentioned when I moved the amendment? If this is merely a question of a few limited powers, why is it that, where Clause 22(1) automatically provides that orders, rules, regulations or other subordinate legislation shall be exercisable by a Scottish Secretary, the legislation does not simply transfer the powers to the Scottish Secretary under Order in Council provisions? The Bill makes provisions for a further Order in Council to do that. Why cannot the Bill do it directly?

Mr. Smith

I was coming to that, because the hon. Gentleman asked about it when he moved the amendment. We believe that it is more suitable for it to be dealt with by Orders in Council because the powers themselves stem from Orders in Council, and in dealing with this matter it is in line with the established convention to do so by an Order in Council. It does not make much difference, as the hon. Gentleman knows, because the purpose is to transfer the subordinate powers to the Scottish Secretary, but we believe it to be more convenient to deal with it by the Order in Council method.

When I am told that something desperate is involved here—the right hon. Member for Crosby said "Hey presto, the Secretary of State could suddenly change the nature of the constitution"—I feel that the right hon. Gentleman must not have noticed Clause 22(7), which specifies that any Order in Council made under this part of the Bill has to be laid before Parliament and approved by resolution of each House of Parliament. Therefore, there is full parliamentary protection.

The hon. Member for Cleveland and Whitby asked about the use of the word "may" in line 3 of subsection (6). He wondered why the word "shall" was not used instead. We took the view that Her Majesty could not be bound or placed under a mandatory duty and that it was more suitable to use "may".

We feel that the proposed arrangements allow Orders in Council transferring Order in Council powers to relate to one or more such powers, as specified in subsection (6). It would be impractical to review the whole of the statute book to identify all the powers to be devolved in a single exercise. Indeed, some such powers might be found to be no longer of any practical value. The provision therefore gives flexibility.

The right hon. Member for Crosby talked about a mysterious master order. He is the only person in this Committee who has a conception of a mysterious master order. I can tell the Committee that it would be the intention of the Government to collect a number of these orders and put them in an Order in Council which would be brought before the House so that they might be discussed. It would not be our intention to search the statute book and find all Orders in Council that it would be appropriate to deal with in this way. No doubt from time to time it would be necessary to come back to make further use of the subsection.

4.45 p.m.

Mr. Teddy Taylor (Glasgow, Cathcart)

This is a technical clause about which the Minister, I am sure, knows far more than I do. However, to give a guideline to people like me who do not understand these matters, may I ask whether the hon. Gentleman evisages that, for example, consideration of an order such as the Sheriff (Removal from Office) Order, which we are to debate later tonight, would be carried out in the Assembly or in Parliament?

Mr. Smith

The hon. Gentleman knows that the order which we shall be debating later is not one that stems from an Order in Council provision. It is dealt with under a Statutory Instrument under an Act of Parliament. As I think the hon. Gentleman knows, the appointment of judges and sheriffs is a reserved matter under the Bill. It is not devolved. It remains a matter for the United Kingdom Government and, therefore, it would be debated in the House of Commons.

I am glad, however, that the hon. Gentleman recognises that this is a rather technical matter. I think he should have a word with his hon. Friend the Member for Eastleigh and the right hon. Member for Down, South, who thought that it was a matter of great constitutional significance. They did not approach it as though it were a small technical matter. I was assured by the hon. Member for Eastleigh that it went to the very heart of the Bill, and the right hon. Member for Down, South said much the same thing. On this occasion—it is not often that I agree with the hon. Member for Glasgow, Cathcart (Mr. Taylor)—I think I must take his view in preference to that advanced from the Back Benches. He has appreciated, with all the wisdom of a Front Bench spokesman, that it is really a rather technical matter. I think that that is the way in which the hon. Member for Cleveland and Whitby approached the matter.

As the right hon. Member for Crosby said, it is not always clear why we use Statutory Instruments on one occasion and Orders in Council on another. I think he was right in saying that an Order in Council is often used by the Government as it collects together the responsibilities of different Ministers and it is therefore more convenient to use the Order in Council method. But it really would be very foolish for us not to transfer as part of the devolution of legislative responsibility the capacity to make detailed subordinate legislation whether it be by the Statutory Instrument route or the Order in Council route.

If the House has agreed in principle for the transfer of legislative responsibility for devolved matters to the Scottish Assembly, if we set out on that road I think that we should do the job propertly and transfer full responsibility within the devolved areas. That is what is intended by Clause 22. It would not make very much sense if the amendment were carried, because it would merely mean that the powers under the Orders in Council would not be capable of being transferred to the Scottish Administration and would remain with the United Kingdom Parliament and Government.

I do not think that the hon. Member for Cleveland and Whitby moved the amendment in anything other than a probing way, as indeed he is entitled to do. We may be in disagreement about the words that might be used in the clause. He may prefer to do it in a slightly different way from what the Government propose. But I should be surprised if he took issue with the purpose behind subsection (6) of the clause because I think it is necessary, if we are to carry through the process of legislative devolution, to do it properly and to do it well. I therefore invite the Committee not to accept the amendment if it is pressed to a Division.

Mr. Dalyell

Before we leave the clause, may I respond to the rebuke which my hon. Friend the Minister delivered to me just now? I do not object to the rebuke, incidentally, as it was perfectly fair in one sense. But it illustrates the fact that some of us are light years apart, not only on the substance of the Bill but also on the way that it ought to be handled. It is all very well at one level to say "But I have to deal with the strict amendment and you raise another point that does not arise out of it?". I do not know where else in the Bill the issue arises as to what in fact the Queen's relationship would be, when she came to Scotland, with the Chief Executive, First Secretary, Prime Minister or whatever he calls himself. All I say is that there are a lot of other people who will want to know these things.

We are faced, under this guillotine procedure, with the trouble at one level that it is easy and proper for my hon. Friend the Minister of State to say that we must stick strictly to the subsections and clauses, but at another level it is most unsatisfactory for us to discuss these major issues, tied down by an able lawyer to strictly legal points, when a lot of other people will want to know the consequences of this part of the Bill, possibly not arising legally directly out of the clause.

Mr. Smith

These are not strictly legal points. They are points to deal with the constitutional arrangements, and my hon. Friend must not take umbrage if I mention a specific amendment.

Mr. Dalyell

No umbrage was taken.

Mr. Smith

It is not for me to rebuke my hon. Friend. but it is fair to say that my major duty is to answer on behalf of the Government the amendment which was moved. My hon. Friend has the capacity to ask interesting questions from time to time. There is nothing in the Bill to provide for a relationship between the Queen and the First Secretary of the Scottish Administration should she visit Edinburgh. Therefore, I do not think that this matter should trouble my hon. Friend. He is ingenious in the use of points of order and in asking all sorts of questions to put matters on the record. I do not think that if I failed to rise to every fly that he cast before me I would necessarily rob him of the opportunity to use his ingenuity.

Mr. Brittan

I do not want it to be thought that we are satisfied with the Minister's explanation or that we think that this is purely a matter of trivial concern. The truth is that the points are complex and detailed and they have to be dealt with on that basis. At the same time, raw nerves have been exposed in the basic structure, and that is why amendments of this sort have to be tabled and debated. There are other amendments following, however, of even greater substance, and for this reason we do not wish to take up the time of the Committee in dealing further with the amendment now before us. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.

Schedule 3 agreed to.

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