HC Deb 11 January 1978 vol 941 cc1697-764
Mr. Mackintosh

I beg to move Amendment No. 540, in page 29, line 17, leave out from 'matter' to end of line 28 and insert shall be all the current statutory duties, functions and obligations of the Secretary of State for Scotland and of the Scottish Office'.

The Chairman

With this we may take the following amendments:

No. 389, in page 29, line 18, at end insert or is necessary for the peace, order and good government of Scotland and is not specifically excepted or reserved in Part II of Schedule 10 of this Act or in section 62 of this Act '. No. 390, in page 29, line 23, leave out lines 21 and 22 and insert— ' (a) any matter over which the Assembly have legislative competence'.

Mr. Mackintosh

I shall attempt to leave out Second Reading points and concentrate on detailed matters which might be more appropriate for the Committee stage.

The amendment is concerned with a broad issue, which I believe the hon. Member for North Angus and Mearns (Mr. Buchanan-Smith) will also raise to some extent at least. The issue is that of the whole question of the presentation of the Bill and the extent of the functions devolved to the Scottish Assembly.

It seems to me to be an important feature of any good legislation that it shows clearly what it is doing. One of my concerns about the Bill is that it is by no means clear precisely what is being devolved to the Scottish Parliament, and what is being retained by the Scottish Office, which will still be located in Edinburgh under the Secretary of State.

The Bill should follow the precedent of the Government of Ireland Act 1920, or the Irish measure proposed in 1972, by which certain functions were retained for Westminster, and it was clear that all other functions were transferred to the devolved Parliament. One knew where one stood, because the position was made clear at the front of the Bill. One knew what was conceded, and what was kept back.

The alternative procedure is to devolve areas of activity to the proposed Assembly—education, health, housing, and so on—and set those out at the front of the Bill, which again would make the position clear.

What we have here, however, is a reference in Clause 61 to a schedule which refers to groups of responsibilities, some of which are devolved, and some of which are retained. It would be hard for any interested member of the public concerned with Scottish or British Government quickly to go through the Bill and say clearly which sections of the present powers of St. Andrew's House are to be devolved and which sections are to be retained.

As an example, I recall being visited not long ago by the people who run the Scottish colleges of agriculture. They said "For certain purposes we are agricultural and undevolved. For other purposes we are educational and devolved. Some of our students are getting what is strictly speaking, agricultural training, others are getting university degrees in agriculture, and others still are getting educational diplomas. We think that our educational functions are devolved. Our agricultural functions stay with the Secretary of State. Our research functions we do not know about, but we think that the land we farm—because land tenure and management are devolved—is devolved."

That is the kind of difficulty of adjustment that is entailed when a sub-division exists within a Department such as the Scottish Office, part of which is devolved, and part of which is retained, and when institutions exist in Scotland which straddle the two functions.

5.0 p.m.

The question I want to put to the Committee and to the Minister of State is: is it not possible to obtain a clearer and more satisfactory division of those functions that are devolved and those that are not? The first thing that will occur to most people is that the logical distinction and division—irrespective of one's approval or disapproval of devolution—is to say that if it makes sense in the first instance to devolve the functions to the Secretary of State, on the ground that this is a Scottish area of administration which would be better dealt with not by a Whitehall Ministry but by Scottish civil servants and a Scottish Ministry operating from Edinburgh, then already a prima facie case has been made out for this sort of thing being devolved to a Scottish Assembly.

It is extremely difficult intelligently to produce reasons why there is a distinction between things that are sensibly to be administered and handled in Scotland but not by a Scottish Assembly. I have tried to think of the reasons for this divide within the functions of the Secretary of State. Which are the criteria which have actuated the Minister of State and the Government in doing this? There are two possible reasons for saying that some of the functions of the Secretary of State could be withheld from the Scottish Assembly, neither of which is very satisfactory. The first major reason that strikes me—I would be grateful if the Minister of State would confirm it as it would be interesting to know the criteria on which this sub-division within the Secretary of State's functions was made-is that some of these functions of the Secretary of State have international implications particularly with regard to the application of EEC regulations to Scottish affairs.

I presume that the biggest single area of administration which is particularly and specially Scottish, but which is not devolved to the Assembly, is agriculture because the vast bulk of the Department of Agriculture's work is at the moment under the influence of regulations and directives coming from Brussels. If that is the case it is an unnecessary reason for not devolving.

The Minister of State has, I understand, recently paid a visit to Germany. He will have seen that the German Government after all these years in the Common Market has no collective Ministry of Agriculture with executive powers. Its Ministry of Agriculture is purely responsible for Brussels. The entire application of all Brussels regulations and directives on agriculture is done by the 11 Ministries of Agriculture of the 11 separate Lander of Germany which operate perfectly satisfactorily within the rules and regulations laid down by the EEC.

An interesting point is that many of the directives of the EEC are not absolutely specific. They say to the British Government that certain objectives must be fulfilled, which gives a slight margin as to how those objectives should be fulfilled. That is precisely the sort of case where a Scottish devolved Administration could be entirely within the Brussels directives but nevertheless might perhaps want to implement a directive on marginal farms for hill areas, or special forms of aid to marginal agriculture, in a fashion slightly different from the implementation which might make sense to the English Ministry in London.

I see no reason whatever why the activities of a Scottish devolved Minister of Agriculture could not be easily retained for legality purposes within the framework of Brussels regulations. I cannot see any other reason for not devolving agriculture other than its possible connection with international relationships.

If I am right about this, we would be in a very difficult position because increasing areas of administration of other devolved aspects would no doubt in future come under Brussels regulations. Therefore, I would have thought that it is a difficult line to draw between those aspects which are preponderantly European and those which are preponderantly British and could be devolved to a Scottish Assembly.

The second reason why the Minister of State may have withheld certain powers from the devolved Assembly and kept them with the Secretary of State is that some of them relate to the local application of economic planning, of regional incentives and the whole regional economic policy. When this happens it not only entrenches on some Brussels provisions but also entrenches on the question—[Interruption.] I am sorry if I am interrupting the discourse of my hon. Friend the Member for Liverpool, Walton (Mr. Helfer).

Mr. Heffer

I apologise to my hon. Friend. I am absolutely fascinated by the number of journalists who are present. At times we have been criticised by journalists—there are now eight present, yesterday there were only three—for not listening to this House discussing important constitutional matters. Some of them have probably come into the Gallery, looked to see how many were present and have gone back to write their stories.

The First Deputy Chairman (Sir Myer Galpern)

Order. That is not a devolved duty of the Secretary of State.

Mr. Heffer

It fascinates me, that is all.

Mr. Mackintosh

I am grateful to my hon. Friend. I thought that my discourse was boring him so much that he was having to regale himself with other conversations.

I come back to the matter under discussion. If one of the major areas to be retained by the Secretary of State, which is not being conceded to the Assembly, is economic and regional planning, I think one reason is its connection with Europe although it is a fluctuating connection. There is a purely political consideration in this regard. It is precisely this area of economic regional planning which the Assembly could use to the special advantage of Scotland which has alarmed some of my hon. Friends who represent the North, North-East and other parts of England and may have led them to feel that if this were a devolved power it migh concede too much to the Scottish Assembly. This would cause considerable alarm and lead my hon. Friends not to want to vote for the measure.

If that is the case it seems that two points arise. It seems exceedingly unlikely that this is now true because it must be clear that the Assembly will not have any significantly larger amount of finance to devote to any subject other than what it is given in a block grant. If it gets a block grant there are already methods of control with regard to the allocation of that money. An Assembly which tried to spend disproportionate sums on industrial advancement at the expense of other forms of welfare would not only meet with punishment from possibly the Scottish electorate but would also need approval under the block grant for this purpose.

I do not believe in this kind of financial control, but it has been retained by the Minister of State. I do not see that this is a reason for not devolving these particular economic powers.

I come to a further point with regard to economic powers. Not only do I think that there is no great risk in devolving these powers but I think there is a strong case for saying that if some of them are basically United Kingdom powers, and basically a question of discouraging development in parts of England, Wales or other parts of Britain so that development can go to Scotland, the proper place for those powers is Whitehall. The proper place for these powers in that case is not with the devolved Secretary of State. They were devolved to the Secretary of State for Scotland for political pressures of a kind that have basically produced the Bill. We ought never to be in a position to say either that these things appertain to Scotland—in which case they should be devolved—or that they have United Kingdom connotations, in which case they should go back to Whitehall.

What we should not have is a residual arrangement which is administratively devolved to Scotland but not under the control of the Assembly. I should like quickly to give my reasons for making this point. It may seem counter to the flow of devolution, but it is not. The reasons are that in the first place the whole future of the office of Secretary of State for Scotland is something about which we have gone round and round, but it is not satisfactorily solved at the moment. Many of my hon. Friends, particularly those below the Gangway, have often said—I think that Ministers have often said this—that it is of tremendous importance to have a Secretary of State in the Cabinet speaking up for Scotland on economic and regional development matters. My guess is that if this Assembly is in any way successful and develops political power and punch of its own, whoever is the first Secretary will be called and will call himself the Prime Minister of Scotland, and he will want at least what the late Sir Brian Faulkner wanted. If there is a crucial shut-down of a major industrial plant he will go to No. 10 Downing Street about it. He will not walk over the corridor to see the Secretary of State, whose clout in the Cabinet will depend on administering half the Department of Agriculture and half the Department concerned with economic affairs.

Let us he quite clear that a Minister's weight in the Cabinet depends on either his standing in the Government—whether he is one of those very powerful posts of Lord Privy Seal or President of the Council—or whether he is a strong departmental Minister spending, as the Secretary of State does now, £3,000 million with tremendous punch and with a weighty Department behind him.

If the Act goes through the Secretary of State will shed to the Scottish Assembly three quarters of his money and his responsibilities. The Secretary of State will sit in the Cabinet wearing two or three little task hats. One will be to let the Cabinet know whether anything is going wrong up in Scotland. That will happen only rarely, we hope, when there is a major clash or row—

Mr. Robert Hughes (Aberdeen, North)

He will be very busy.

Mr. Mackintosh

If he is busy, the whole thing will collapse and fall to pieces. But we are not now discussing the merits. We are discussing how the Act will work. He will be wearing in the Cabinet a hat representing half the responsibilities of the present Parliamentary Secretary to the Ministry of Agriculture and half the present functions of the Secretary of State dealing with economic affairs. That will be his clout as a departmental Minister.

I doubt very much whether such a Secretary of State is the kind of person to put the case for Scotland to the United Kingdom Government in the event of a major problem of economic development. I think that the case should be put by the Scottish First Secretary or Prime Minister, who will no doubt be on the aeroplane right away down to London to say "We cannot face the closure of this factory or the destruction of this industry".

My alternative suggestion is that these powers, if they are British powers, basically should be given to the Secretary of State for Industry, who should be looked at the matter in a United Kingdom context, as the House is still responsible to the United Kingdom, and saying that in this case Scotland is part of the United Kingdom and should not suffer in this way.

This attempt to create a rump Secretary of State with a little fragmented Department which is partly administrative and partly watching over the Assembly is to create a very weak Department, one which would rapidly be a candidate for the exclusion of its head from the Cabinet. That is inevitable. I do not go along with Sir Richard Marsh's recent statement that no one would really want to be a Secretary of State.

5.15 p.m.

Mr. Robert Hughes

Does my hon. Friend not recall the exchange of letters between the then Prime Minister who first set up the office of Secretary of State and the man he chose, in which he said that it was not a very onerous office but that he would like him to do it? Ever since that day every Secretary of State has increased his clout. Whatever the functions of the next Secretary of State under devolution, whatever his job will be, he will develop his own clout according to the system under which he has to work.

Mr. Mackintosh

I do not think that that will happen because the whole history of the office of the Secretary of State has been without the existence of the devolved Assembly. The whole strength of the office of the Secretary of State ever since it was created was that he was the man who spoke for Scotland. If the Bill becomes law two people will speak for Scotland. I suggest that the louder voice will be that of the person elected by and responsible to the Scottish Assembly. If he is a tough character—someone like my hon. Friend the Member for Walton—can one imagine him speaking to a junior Cabinet official? Certainly not. He will deal only with the Prime Minister, with whom he will demand an audience. If a United Kingdom matter arises it will be dealt with in the normal way in the United Kingdom Cabinet.

There is one other complication. It is profoundly unsatisfactory to draw a line through the existing Department in St. Andrew's House and say that civil servants falling on one side of the line are responsible to the head of the Scottish Assembly and those on the other side to the Secretary of State, especially when the Civil Service may be responsible on one side to a Tory leader and on the other side to a Labour leader.

I am delighted with the announcement of the new Permanent Secretary for the Scottish Office. In him we have a man of rare distinction. I shall be interested to see, when the division takes place, whether this very able civil servant decides to be head of the Scottish Civil Service to do with the Assembly or to be head of the Scottish Civil Service answerable for half of the Departments of agriculture and economic affairs to this small-scale Secretary of State who will be a message boy between Scotland and England. I know that the Minister of State will say that he will not be a message boy and that he will be an important man. I am thinking of what he will become after this Bill has been in operation for some time. This is a grossly unsatisfactory position.

Why is the Bill seeking this curious sub-division? Why are the Government trying to behave in this way? I think that it is because of the political factors that I have mentioned. It would be much more satisfactory to have a Scottish Office with all the powers of the Secretary of State devolved to the Assembly. Those that are unfit to be devolved should be withdrawn and sent back to Whitehall so that there is a clear distinction between a Scottish Government in Edinburgh responsible to the Scottish Assembly and a United Kingdom Government in London responsible for some Scottish affairs—for industry, possibly, for employment and for social security. But a clear distinction of this kind must exist or the thing will not work.

The Minister of State may urge us to look at the case of Northern Ireland. This is our one clear-cut case. There certain clear-cut powers of the kind that I am asking for were devolved to the then Stormont Government. That system was operated for 50 years. Let us leave aside the political complications which beset Stormont, and think instead of how the system worked as an administrative machine. It is worth noting that on many issues, for administrative not political reasons, the officials and Ministers in Stormont decided to work hand in glove with their Whitehall colleagues. Consider the operation of the Ministry of Agriculture and the whole of agriculture under those legislative and executive powers in the 10 years before the end of the Stormont Government. The officials and Ministers there worked hand in glove with Whitehall simply because Irish farmers wanted the same prices and regulations on health and vaccines, for example, as applied in the United Kingdom.

No doubt in time in the same way United Kingdom Ministries will be working together with European Ministries as harmonisation progresses. But let us consider from within the entire sphere of agriculture those things which were special for Northern Ireland and in which Northern Ireland needed special and suitable treatment. The interesting point is that this margin between those things which were better done uniformly for the United Kingdom and those things better done specially for Ireland was a fluctuating margin. It is not a margin which can be laid down in an Act as this Act seeks to lay it down. It changes as situations develop.

My plea to the Minister of State is that it is far better administratively, politically and psychologically to devolve a complete function and then leave it to the devolved Assembly to decide to co-operate with the United Kingdom Government on it. This is done in every federation in the world. There is no federation where co-operative federalism as it is now called has not taken root. Even the State of Quebec in its present difficulties is still working with Ottawa in joint schemes because they make sense, but the decision to do so lies with the devolved Assembly and is taken freely and of its own will. To attempt to say beforehand that this or that cannot be done because it is reserved for a curious half or quarter Department sitting in Edinburgh—not in the same building but perhaps across the road, in the same geographical area, and not under one's control—is a recipe for disaster.

I ask the Minister, therefore, to consider altering the form of the Bill, when it comes to another place, in order to accommodate this difficulty.

Mr. Grimond

It seems to me that Parts IV and V are the nub of the Bill, and that it is in relation to Part V that the major danger of confusion arises.

I share the desire of the hon. Member for Berwick and East Lothian (Mr. Mackintosh) that there should be a clear-cut division of powers between the Secretary of State in the United Kingdom Parliament and the Scottish Parliament in Edinburgh.

I am told—I have not been able to check it—that Scotland has the highest proportion of its economy under public control of any country in the Western world. On the question of how this is to be controlled the Bill is very obscure. It does not say how the nationalised industries and the innumerable public boards—I believe that already 49 report to the Secretary of State for Scotland—are to fit into this pattern of devolution.

As the hon. Gentleman has already stated, it is inconceivable that the Scottish Assembly would remain silent if the Scottish economy were, for example, to be undergoing extreme difficulty with industrial trouble. The Assembly would certainly want to debate this and, as the hon. Gentleman has said, the head of the Scottish Government would go direct to the Prime Minister in London. The Secretary of State might very well be cut out.

The more we consider the Bill the more obvious it is that a federal structure would be the clearest, cleanest and easiest way of dealing with Home Rule. I do not wish to develop that argument at this stage but merely put it on the record. The more we debate the Bill, the more we see that federalism is what we are driven into. I follow the hon. Gentleman in saying that if we look at the Irish Bills we find that they provided a much cleaner, clearer and shorter form of devolution than we are now embarking upon.

The hon. Gentleman has asked why certain groups are not devolved and others are. I attempted at a previous time to draw up a devolution Bill for Scotland. It is not an easy thing to do. It is not something that can be done between shaving and breakfast. The difficulty is that the functions of the Secretary of State for Scotland have grown up over the years and have not followed any absolutely clear-cut logical process. But there is a lot to be said for the hon. Gentleman's amendment and for taking these functions as a basis.

As to fisheries, for example, in Group 14, as we have to negotiate for fisheries on the world scene, it is probably desirable that this should be done for the United Kingdom as a whole by the Foreign Office. Scotland has certain particular interests in fisheries, and therefore there is a genuine difficulty in drawing up exactly who is to be responsible for fisheries. I do not want it to be thought that I think that the solution is easy, but I believe that something on the lines of the amendment would have been easier than what is proposed in the Bill.

The Bill sets out certain groups and then it begins to enumerate the statutes, saying whether they are to be devolved or not. I would lay a very heavy sum of money on the contention that something has been left out in one way or another, and that in a year or so some confusion will arise as a result. I am not quite certain how that will be put right. If there is conflict between, say, the Scottish Assembly and the United Kingdom Government, we know how that is to be put right, but I am not clear whether the Government envisage having amendments made to the Act when it is discovered that the balance is not quite right. There may well be confusion arising from certain omissions. There may be matters which should be devolved and have not been, or it may be the other way round. Do the Government envisage amending the Act subsequently for this reason? I think that, if the Bill stays as it is, that is bound to happen. If it has to be amended, there will be very serious confusion between England and Scotland as to the method and means of amendment. I shall be very surprised if the Bill in its present form is found to be anything like complete.

Clause 61 refers to Clause 62, which gives certain overriding powers to British Ministers. Therefore we have a further form of confusion here. It is not even clear, in relation to those matters which are included in the Bill, that they will be exclusively within the power of the Scottish Executive. British Ministers may come in and decide that they wish to operate and legislate on these matters. There again I think there is a real danger of confusion.

I have a certain interest in Private Bills. I understand that if a Private Bill contains matters some of which are devolved and some of which are not, the position is that the Scottish Assembly can deal with the matters which are devolved but cannot deal with those which are not devolved. I should like to be told whether that assumption is right. I should also like to know how the apparatus of Private Bills will be handled. On both sides of the border a great many authorities attach great importance to their Private Bills. I assume that there will be a Private Bill procedure in the Scottish Assembly, but I understand that some Bills may be hybrid, so to speak, in that they may deal with matters some of which are devolved and some of which are not. I understand that the Shetland Bill will be in that position. It will therefore be subject in certain respects to interventions by the Scottish Assembly, and in other respects it will remain under the Secretary of State and the United Kingdom Parliament.

I believe that, if we do not have federalism, we shall be in a very great difficulty about this, and that the only way to get round it is to make the sort of cut that the hon. Gentleman suggests in his amendment, so that at any rate we may start with those matters which are under the Secretary of State for Scotland.

I do not deny that there may be certain matters which will have to be looked at again because further devolution may be required. Like the hon. Gentleman, I think that it will be extremely difficult to run the Scottish Assembly without some powers of taxation. The Assembly will constantly want to do things which will cost money, but it will not get money apart from what has been allocated to it already. This will be a limiting factor, whatever may be its powers on paper. Nevertheless, what is proposed in the amendment would be a useful start. Although it is not ideal, I hope that the Government will consider it very seriously from the point of view of those of us who believe in some form of devolution. I suggest that we should learn from the Irish Bills and the experience of the Secretary of State's office, and try at any rate to operate more along the lines of the amendment.

Mr. Heffer

I found the speech of the right hon. Member for Orkney and Shetland (Mr. Grimond) very interesting indeed. He has done what many other hon. Members have already done in this House. He has again raised the whole basic question of the Bill. I do not know how we can possibly discuss any part of the Bill without doing so.

The right hon. Gentleman's party, of course, supports the Bill, but what it really wants is federalism. The Scottish nationalists support the Bill, but they really want separation. Other hon. Members support the Bill because they do not see any alternative to it.

My hon. Friend the Member for Berwick and East Lothian (Mr. Mackintosh), in moving the amendment, said that we do not want to go into these basic issues, but I do not know how we can avoid it. I actually agree with the logic of his argument. It was a most logical proposition that he made. As to what we are being offered at the moment, I will not use my Dad's expression, but it ends up with the words that it is neither one thing nor the other. He had a much more colourful way of putting it. We are being offered a sort of half-way house, and in politics half-way houses are never satisfactory. They can go on for a period of time but eventually we either go beyond them or we go back. The question, therefore, is what exactly the Secretary of State for Scotland is to do. My hon. Friend is absolutely right in saying that three-quarters of the Secretary of State's powers and work will be taken away. Are we to understand that the First Secretary of State will be sitting in the Cabinet—because, if he has not that sort of power or scope, what position will he occupy? Will he be listened to, or will he be a person of no importance?

I believe that the First Secretary whatever he is called—I shudder to think that he will be called Prime Minister—will be an important man and a man to whom the Prime Minister of the British Parliament will have to listen to and consult on matters affecting Scotland. That is logical.

5.30 p.m.

Mr. Dalyell

My hon. Friend having said that, is it not implicit that Labour Cabinet members will tell their colleagues precisely what is going on? If a Labour Cabinet can tumble to these matters, but if my hon. Friend's colleagues on the National Executive of the Labour Party have not tumbled to them, is it not about time that they at least woke up to them?

Mr. Heffer

My hon. Friend refers to my colleagues on the National Executive of the Labour Party. I do not want to say much on that score. I have had a few battles in the past, and I was defeated. I thought that my arguments were right, but my colleagues thought otherwise. I am sure that if those colleagues were here and able to listen to the arguments which are presented, they would be convinced that either one has to go the whole hog and have some form of federal system or leave the position precisely as it is. That is the logic of the argument put forward by the right hon. Member for Orkney and Shetland. The logic is either that one should go ahead, abolish the Secretary of State and establish a Scottish Assembly as the first step towards separation, or that the situation should remain as it is in respect of the unity of the United Kingdom. I think that is a most important argument.

I shall neither support this amendment nor oppose it. I wish that we were not even discussing it. In my view, the contribution which these discussions and debates make towards the well-being of the British people and of the future of the British Isles is absolutely nil.

Mr. Alick Buchanan-Smith (North Angus and Mearns)

I am grateful to be called to contribute to this debate because my Amendments Nos. 389 and 390 are being discussed with Amendment No. 540. I am grateful for the acknowledgement by the hon. Member for Berwick and East Lothian (Mr. Mackintosh) that my amendments, though by slightly diffenet means, seek to achieve the same ends as his amendment.

I have sought to amplify my amendment still further by tabling Amendments Nos. 387 and 391 and also a new schedule, Amendment No. 388. Those amendments have not been called with the present group, but I mention them because I believe they follow a reasonably logical course in connection with my other amendments.

I agree with the hon. Member for Liverpool, Walton (Mr. Heffer) that in this respect we should have nothing at all, or should move further forward. I have made no secret of the fact that I desire to go rather further towards a federal-type structure for the United Kingdom. That is the motivating force behind my amendments, because I believe that they would help to pave the way towards that federal structure. I accept that they have some demerit and may be simply a half-way house but, as I shall try to argue, it is a half-way house that has a greater stability than the kind of solution put forward by the Government in the Bill.

I emphasise that the purpose of my amendments is the same as that adopted by the hon. Member for Berwick and East Lothian, namely, to try to demonstrate that there is an alternative approach to the course chosen by the Government.

There are, broadly, two methods of devolution. One is to specify in detail what is to be devolved, which in general is the Government's approach. The other is the method that I have tried to adopt, namely, to specify what is being retained to the sovereign Parliament. Obviously, I prefer the latter course. The Government have chosen their method, but it involves a great deal more description of the detail than does the method that the hon. Member for Berwick and East Lothian and I have chosen. However, when functions are divided—the hon. Gentleman mentioned the topic of agriculture—we get into an area of great confusion. I hope that the Committee will approach these amendments on their merits and consider them quite apart from the question whether one favours devolution. We are considering schemes of devolution, and it is important that we should try to obtain the best provisions.

The hon. Member for Berwick and East Lothian referred to a meeting which he and I attended and which dealt with agricultural matters. He will remember that at that meeting there were individuals who were in favour of devolution but others who were very much against any form of devolution whatever. The one thing on which they were agreed was that if there was to be a scheme of devolution it was important either that everything was devolved in a particular area, or that everything was retained. Regardless of approach, that was a common factor in the argument.

I believe that the Government's approach tends to be messy, untidy and unclear. I appreciate that they have chosen this method because they wish to treat these functions on their merits, but they are approaching the subject of devolution as a matter of detail rather than as a matter of principle. It is the principle with which we have tried to deal in our amendments.

Mr. Timothy Raison (Aylesbury)

Does my hon. Friend think that it is possible to devolve matters of agriculture? I appreciate that the hon. Member for Berwick and East Lothian (Mr. Mackintosh) quoted the German example. I do not think that that example is ideal, but it is something which the Germans have to put up with because of the way in which their system works. Does my hon. Friend thinks that it would make sense—I ask him this because of his great knowledge of agriculture—to give these agricultural powers to Scotland and yet to leave to the United Kingdom the negotiations in Brussels?

Mr. Buchanan-Smith

Yes, I think that is possible.

Mr. Raison

But is it sensible?

Mr. Buchanan-Smith

Yes, I think that it is sensible when considering the situation in Europe. I shall deal with the detail in a moment. We could quote the Northern Ireland example in terms of domestic functions, because many functions remain in that Province. One of the successes that we have achieved in Northern Ireland is that the authorities there have been responsible for agricultural matters and they have pioneered work in the eradication of certain diseases and, indeed, are ahead of the rest of the United Kingdom. They have set a pattern in that work. However, to come to a more up-to-date example in a European context, I do not think that this Bill takes sufficient account of the changed constitutional position of the United Kingdom as a whole in Europe.

Agriculture is an example, and I am grateful to my hon. Friend the Member for Aylesbury (Mr. Raison) for raising it. The economic functions of the agricultural departments are important in the context to which he refers. The agricultural departments of the United Kingdom, whether in England, Wales or Scotland, are merely acting as agents for decisions that are taken in Brussels. My hon. Friend shakes his head, but that is the truth. To a great extent they are acting as agents.

In my amendments foreign policy and policy making on European issues are retained by the sovereign Parliament, by the United Kingdom Assembly. The carrying out of European functions is often done by the Northern Ireland Office and the Ministry of Agriculture, Fisheries and Food, and I do not see why a devolved Assembly in Scotland, a Scottish Administration, should not carry out such functions in the same way.

Mr. Raison

It seems that what my hon. Friend is suggesting goes against that which was argued by the hon. Member for Berwick and East Lothian, namely, a sort of split in agricultural policy. I do not believe that there can be the separation of the economic function of agriculture. In reality we are nowhere near the stage when our Ministry of Agriculture, Fisheries and Food is or will be an agent of Brussels. My hon. Friend will bear in mind what happened in terms of the beef subsidy a year or two back. We were to have the European policy, but our farmers kicked against it and we came up with a scheme of our own. That sort of thing will happen the whole time, even though that is not what the Common Market wants. That will be the reality of the situation.

Mr. Buchanan-Smith

I do not want to be diverted into a debate on agriculture. However, agriculture is a good example of the way in which we should deal with these functions. It is the way in which certain functions are dealt with that I am seeking to discuss. In the operation of the German example all the negotiations are carried on by the Federal Minister of Agriculture in Brussels. As the hon. Member for Berwick and East Lothian said, the decisions are implemented by the different Länder.

It may well be said that we are moving into a completely new constitutional system. That is why I am disappointed that the European element is not more discussed as we deal with these matters. The German Government have developed their machinery since the European Community was set up whereby the Länder are brought into discussions with the Federal Parliament on the policy decisions that are taken in Brussels. It has been said that we are liable to difficulty as particular countries try to follow up particular policies within the EEC policy—for example, the introduction of the beef premium, which was tried first in this country. Given the solution that I am suggesting, I do not understand why that should be any hindrance to the innovation of and variation in policy that we now see developing.

Mr. Nick Budgen (Wolverhampton, South-West)

This is all possible within a clearly defined federal structure such as that which exists in Germany—

Mr. Mackintosh

There is the Northern Ireland situation.

Mr. Budgen

The hon. Gentleman intervenes by referring to the Northern Ireland situation. The right hon. Member for Down, South (Mr. Powell) has dealt with that argument many times. To return to the argument of my hon. Friend the Member for North Angus and Mearns (Mr. Buchanan-Smith), is it not the position that until we have a clearly defined federal structure we cannot deal with these matters in the manner that he suggests?

5.45 p.m.

Mr. Buchanan-Smith

If I am not careful, I shall fall into the same trap as that into which the hon. Member for Berwick and East Lothian fell yesterday, namely, taking up many interventions and entering into general debate, thereby losing sight of the amendment. However, I shall answer directly the question posed by my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen). I do not think that it is unfair to draw the comparison with Northern Ireland. We applied to join the Community and at the same time we still had a Stormont Parliament and a domestic administration in Northern Ireland. I was involved in the negotiations on agriculture with the EEC. I cannot remember any occasion throughout the discussions with the Northern Ireland Office, or with my colleagues in the Northern Ireland administration, when any problem arose in respect of their acting on European policy. Direct rule has come only since we entered the Community. I do not think that the Northern Ireland comparison or illustration in any way weakens my argument. I accept that my hon. Friend has a point on the basis of the Government's Bill. There is the unsatisfactory element involved in the question how all these provisions fit into the wider constitutional structure of the United Kingdom and Europe.

I return to the point that I made at the beginning of my remarks. We are trying to suggest a way in which a devolved structure may be set up for Scotland. I believe that the content of my amendments make more sense for the reasons that I have mentioned, and would, if accepted, develop into a more stable situation that would take better account of the United Kingdom as a whole, and of our relationship with Europe.

To take up the main theme of my amendments, I believe that what they propose has certain advantages. First, that which is proposed in the amendments has precedent. The hon. Member for Berwick and East Lothian has already referred to that precedent and I do not want to refer to it again in detail. Is is the fact that the Government of Ireland Act 1920 is based on the very much more simple premise of specifying what is retained and devolving everything else. In the Northern Ireland Constitution Act 1973, on which my amendments are specifically modelled—especially the new schedule—we are shown that even in the United Kingdom legislative context there is precedent for the proposal that is contained in my amendments. For that reason I hope that the amendment now before the Committee will commend itself to the Government.

Secondly, as the hon. Member for Berwick and East Lothian said, I believe that what we are proposing in the amendments is very much more clear-cut than the provisions and the schedules in the Bill that deal with the division of powers.

The hon. Member for Berwick and East Lothian mentioned agriculture. Another dimension is fisheries. This is where we have the unclear distinction. On the one hand, a fish in the sea comes under the responsibility of the United Kingdom Parliament. On the other hand, a fresh water fish comes under the responsibility of the Scottish Assembly. Unfortunately, some fish happen to move from fresh water to sea water. That is an illustration of the confusion and overlapping that will be created under the approach taken by the Government.

The third reason for my supporting this group of amendments is of importance and has been touched upon already in interventions. As the hon. Member for Walton said, I feel that that which the Government are proposing is, to some extent, a halfway house. Of course, constitutional changes may always be considered, to some extent, in that context. If democracy is to be meaningful and is to remain real, it will always evolve. If it does not change, democracy is failing. I believe that the amendments are based on more clear-cut principles than those that the Government put forward in the Bill.

The eventual solution for which the right hon. Member for Orkney and Shetland (Mr. Grimond) looks, and for which I have some sympathy, is of a federal nature. The amendments contain some of the elements of such a solution. They propose a structure that is much more likely to be stable. If there are to be subsequent changes, it is likely that we shall evolve a better constitutional solution for Scotland and for other parts of the United Kingdom.

One of the weaknesses of the Government's proposals is exemplified when we contrast the Scotland Bill with the Wales Bill. They are proposing one-off solutions for different parts of the United Kingdom; a one-off solution for Scotland, a one-off solution for Wales and still no solution for Northern Ireland or for England, the biggest partner in the United Kingdom.

I believe that the approach embodied in the amendments, which is of a federal nature, should commend itself for its own sake and because these principles can be applied equally, not only to Scotland but to other areas of the United Kingdom.

Mr. William Small (Glasgow, Garscadden)

I know that I have a quaint way of expressing myself on occasions, and probably it will happen again today in terms of devolved power and the status quo.

If one looks at Ireland as a philosopher, what does one find? It was created because one party would not commit political bigamy. That was the difference between the two camps, and we got the result in the Government of Ireland Act 1920. We tried to resolve the problem recently in the Convention, by proportional representation and in other ways. We introduced a kind of political Esperanto—a common language. We still have not solved the problem of Ireland.

What do we have now in terms of the Scottish end of the business? If I quote my poetry right, there used to be the story of the one-eyed yellow idol to the north of Khatmandu. To that extent, it is a broken-hearted woman who attends the grave of Mad Carew.

I cannot support the Bill in its present form. The 1707 Act has stood the test of time and weathered the storms. I cannot find my soul drifting in the direction of the Bill.

Mr. Leon Brittan (Cleveland and Whitby)

It may be convenient to intervene at a comparatively early stage in the debate on this important matter. The distribution of powers between Westminster and the devolved institution is absolutely central to the whole of the Scotland Bill.

I agree with the hon. Member for Liverpool, Walton (Mr. Heffer) that it is not possible to consider particular aspects of the Bill—finance yesterday or the distribution of powers between Westminster and the devolved institution today—without looking at the whole structure, purpose and philosophy in forming the Bill.

Previous debates—yesterday's as much as any other—showed that, in the view of many right hon. and hon. Members, the measure as a whole is shoddily conceived and is a short-sighted answer to the problems, based on a narrow political view.

This group of amendments and the consideration of the division between the powers reserved to Westminster and those granted to the devolved institution shows that the Bill manifests another defect, related to the first. It is pitifully hesitant and miserably two-faced. It is pitifully hesitant, on the one hand, because it purports to grant to the devolved institution a wide measure of power which will enable it to govern Scotland in a meaningful way. On the other hand, it is two-faced because it gives with one hand and takes away with the other. It is for that reason that, when we look at the provisions relating to the distribution of powers between the devolved institution and Westminster, we find the characteristics of a local government Act rather than a constitutional measure.

Instead of a broad-based generous grant of powers on a limited or large number of subjects, as the case may be, or the reservation of a limited number of powers, we find the messy contrivance of a detailed catalogue of powers, some devolved and others partially devolved, and non-devolved powers, some of which are none the less partially devolved. In addition, there are certain overriding reserve powers just in case the position was not complicated enough.

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

Before the hon. Gentleman leaves the adjectival part of his speech—he has described the Government's proposals on devolution as hesitant—what adjective does he think would be proper for the Conservative Party's policy on devolution?

Mr. Malcolm Rifkind (Edinburgh, Pentlands)


Mr. Brittan

"Cautious" was the adjective used by my hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind). It is understandable that whenever the Minister of State reaches a difficult patch he turns to the "Let us attack the Tories" line. It is an understandable Government tactic. It is the ministerial equivalent of the famous annotation in the speaker's notes "Weak points, shout." Whenever the Government get into that situation, they attack our proposals.

These are serious matters, because there is a real alternative in our approach. I hope that the Minister of State has now had his little fling in this debate. Of course, he is welcome to return to it as often as he likes, but it does not further his cause.

It is not exactly a great secret that the Conservative Party is not in favour of the transfer of massive legislative powers to a Scottish Assembly and the creation of a separate Scottish Cabinet and Government for Scotland. As the hon. Gentleman and many Labour Members who have already spoken are anxious that we should consider the Government's scheme, I should point out that, if the transfer of a substantial amount of power is to take place, certain essential criteria have to be met: first, that the powers to be transferred should be clear in expression; secondly, that the transfer of powers should be generous in conception; and, thirdly, that they should avoid ambiguity and conflict to the maximum possible extent. I think that those are fair criteria to apply to the distribution of powers.

The Government's scheme does not meet those criteria. There are no clear criteria for the division of functions. They are arbitrary. It is reasonable to say that, as a possibility, we envisage some kind of Home Rule for Scotland and that what is left to the United Kingdom Government and Parliament will be defined in terms of what is necessary for retaining the unity of the United Kingdom. But that has not been done. It is not a measure of Home Rule of that kind.

For example, there may be a powerful argument for not devolving the universities, and I would support it. But, at the same time, if we envisage Home Rule for Scotland with reserve powers for the United Kingdom Government to retain the unity of the United Kingdom, there is no reason for not devolving the universities.

I should like to illustrate how the detailed splitting up of powers goes to the smallest minutiae. There is no reason why, on anything approaching that generous basis of devolution, there should not be devolution of career guidance. It is difficult to see why it is necessary for the United Kingdom Government to retain career guidance to maintain the unity of the United Kingdom. That sort of basis of devolution has not been chosen.

6.0 p.m.

An alternative basis, which found favour with the hon. Member for Berwick and East Lothian (Mr. Mackintosh), is that of devolving the essential powers of the Secretary of State for Scotland as exercised in executive matters, and areas that he would cover in introducing legislation to this House. That also has some attractions, but it is not the approach followed here.

The third possibility would be to say that we should set out a list in fairly general terms of reserve powers or devolved powers. That approach was adopted in the Government of Ireland Act and the Northern Ireland Constitution Act. The distinction between them has often been made by the Minister of State, but in this respect there is no distinction to be drawn.

There are real advantages in adopting that kind of approach. It meets the criteria of being generous in conception, and it involves far less conflict and ambiguity than otherwise would be the case. Ambiguity can arise in two senses. It can arise because there is no particular reason why one power should be devolved while another is retained. In that sense it is a logical ambiguity. Secondly, in any legal instrument setting out powers, there are ambiguities of interpretation at the margins, and for that reason it is necessary to have an element of judicial review for legislation, whether it is pre-Assent or post-Assent.

It is quite clear that the larger the number of categories set out in the context of this Bill the more the opportunities for demarcation disputes and disagreements on the question whether there is devolved power being operated and on the question whether the Assembly has acted intra vires or ultra vires. By insisting on setting out detailed categories of powers, derogation from powers, legislation that can be amended or repealed by the Scottish Assembly, legislation that can be partially amended by the Assembly and legislation which cannot be amended by it, plainly we increase greatly the opportunity for dispute and argument at the margin.

In addition, apart from the lack of generosity, the lack of clarity, the increase in ambiguity and the conflict involved, there is the position of the Secretary of State for Scotland. This matter was raised by the hon. Member for Berwick and East Lothian, who, unhappily, is unable to be with us at this stage of the debate. There is great force in the point the hon. Member made that the position of the Secretary of State does become, under this scheme, very much weakened and very uncertain. He will be, in principle, little more than a messenger boy or at best a listening post with limited powers. It is very difficult to refute seriously the suggestion that the person having the title of Prime Minister of Scotland will be the one who makes representations to the United Kingdom Government. That must be a defect in the system and in the distribution of powers.

Then there is the role of the House of Commons. Here we have a hybrid and complex situation offending against the criteria which should be applied when we consider the distribution of powers—

Mr. Raison

May I take my hon. Friend back to the question of the Secretary of State for Scotland and his position if this ridiculous Bill goes through? It is essential that there should be a senior Minister designated to hold responsibility for what goes on in Scotland. In Stormont it was the Home Secretary who had a kind of responsibility for Northern Ireland. That responsibility was inadequately exercised, but nevertheless it would be disastrous to get into a situation in which the House of Commons was unable to express anxieties and doubts for something for which, at the end of the day, we are completely and utterly responsible.

Mr. Brittan

I agree entirely. That is why I am opposed to the present concept of the Bill. Any suggestion that the continuance of the office of Secretary of State provides protection seems rather illusory. It might be unsatisfactory to transfer residual responibility to the Home Secretary, but it is even more unsatisfactory to pretend that the responsibility rests in the weakened hands of the Secretary of State for Scotland, who will seem a pitiful and minor figure compared with the Prime Minister of Scotland. I agree entirely about the need for such a relationship to exist, and that the scheme that we have in the Bill does not provide it. For this reason, and many others it is an objectionable Bill. The effect of this distribution of powers on the House of Commons is to provide four separate sorts of situation, according to the subject matter.

There may be matters in respect of which the position is exactly the same in Scotland as it is in England and Wales—the position in which responsibility is exercised solely by United Kingdom Ministers, legislation is passed here and we are in total control. Secondly, there may be a situation in which legislation is passed in this House but is looked after by the Secretary of State for Scotland within the United Kingdom Cabinet. The third situation is one in which the United Kingdom Parliament retains responsibility for legislation in a particular area, but its administration is in the hands of the Scottish Executive. The fourth situation is one in which both the legislation and its administration are in the hands of the Scottish devolved institutions.

This illustrates the fact that the Bill is complex and cumbersome, and it does not distribute the powers between Westminster and the devolved institutions on a rational or administratively workable basis. It does not distribute them on a basis that has political advantages of generosity or clarity of conception, or on one that avoids conflict. It is not surprising that this is so, because the Bill was conceived not as a constitutional instrument but rather as a matter of "How far must we go?" and "How far dare we not go?". On the basis of compromise of that kind we are expected to go as far as is irresistibly possible and at that point the devolution of powers stops. We are expected to go to the point where insistence is overwhelming, and at that point the retention of powers stops. It is essentially short-sighted and, therefore, unstable and unworkable balance, which is not based on any constitutionally sound principles of the devolution of powers.

Aside from jesting with the Minister of State, which is always enjoyable, I have made it quite clear that we are not in favour of executive and legislative devolution of that kind. But if one is to proceed along those lines, the approach of the hon. Member for Berwick and East Lothian is preferable. The approach of my hon. Friend the Member for North Angus and Mearns is even more preferable. At least it would provide a logically coherent, politically workable and constitutionally respectable basis for advancing, rather than the botched-up solution put forward by the Government.

Mr. David Price (Eastleigh)

On a point of order, Sir Myer. The Committee is in some difficulty, since the hon. Member for Berwick and East Lothian (Mr. Mackintosh) moved this amendment but was not here for any of the speech of my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan). I am one of the more senior hon. Members in the Chamber, and I have always thought that an hon. Member who is lucky enough to have his amendment called should be here to listen to the debate. The Minister is about to reply and the hon. Member for Berwick and East Lothian is not here. As we are under a guillotine and the Chair has had difficulty in selecting some amendments, is it not good manners to the Chair and for the convenience of the House and the Front Bench spokesmen that an hon. Member who moves an amendment should stay to listen to the debate? Otherwise, what is the point of debating amendments?

The First Deputy Chairman

It would be a welcome power for the Chair to be able to say that the sitting should be suspended until an hon. Member who moved an amendment has returned to listen to the debate. Unfortunately, I do not have that power. It is customary for an hon. Member to remain, but there may be a good reason, which we shall learn about later, for the absence of the hon. Member for Berwick and East Lothian (Mr. Mackintosh).

Mr. John Stokes (Halesowen and Stourbridge)

Further to that point of order, Sir Myer. As you are about to call the Minister, does that mean that this will be the last speech or will other hon. Members who wish to intervene have the chance to do so?

The First Deputy Chairman

I can reassure the hon. Gentleman. If he wishes to take part in the debate, he has until 11 o'clock tonight to do so—though I hope we shall not still be on this amendment by then.

Mr. John Smith

I think that it would be convenient if I intervened to set out the Government case in response to the amendment. I note that a number of hon. Members still wish to speak. That is their privilege, but the more time that is taken on a general discussion of a clause, the less time there will be for the groups of amendments. We have three days in which to debate this clause and Schedule 10, and I hope that it will be possible for us not to spend an excessively long time on the general principles before moving on to some of the important matters that arise in the groups of amendments to Schedule 10.

I see that my hon. Friend the Member for Berwick and East Lothian (Mr. Mackintosh) has just returned to the Chamber. He is here on time. I should like to deal immediately with some of the points that he raised. He takes a different approach to devolution and says that it is simpler than what we have provided for. He says that all we need to do is to devolve the functions, duties and obligations of the Secretary of State for Scotland and the Scottish Office. Since the hon. Gentleman is a constitutional historian of distinction, he will know that the Scottish Office has not acquired powers over the years according to some grand design. Every United Kingdom Administration has added stones to the cairn of the Scot-tish Office. Nearly every Administration has devolved, in an administrative sense, functions to the Scottish Office. This Administration devolved responsibility for regional development grants. This is a characteristic of Conservative as well as Labour Governments.

6.15 p.m.

I do not think that anyone would claim that the way that powers have been devolved within the concept of a single legislature and single Cabinet responsibility for them should necessarily be a guide to what should be the legislative competence of the Assembly.

I was grateful for the way in which my hon. Friend centred on the main points of the amendment. If we followed his approach, we would transfer to the Assembly some areas of activity that are not within the Bill, principally agriculture, regional industrial policy, police and electricity. There are other matters such as civil defence—

Mr. Mackintosh

Should the Minister not add fisheries to his list?

Mr. Smith

I was going to develop that point later. At present we have devolved only salmon and fresh water fishing. My hon. Friend is correct; fishing would be one of the major areas to be devolved, but I had taken agricultural to include fisheries. These would be major additions to the devolved capacity of the Assembly.

The Government took the view, for which the hon. Member for North Angus and Mearns (Mr. Buchanan-Smith) has criticised us, that it would be wrong in principle to devolve these matters. On the question of agriculture, a great deal of agricultural policy is subject to regulations, directives and policy formulated in the EEC. As a result, the opportunity for the Scottish Assembly to reach a policy vastly different from that in the rest of the United Kingdom would be limited. The opportunity to follow a distinct Scottish policy related to the circumstances of Scottish agriculture would be limited narrowly.

It seemed important for us to take into account the fact that we have a common market in agriculture in this country. For example, a great deal of agricultural produce is grown in Scotland and a great deal of livestock is reared there. When talking about public expenditure per head, some hon. Members should remember that, in terms of agricultural support, the high figure which appears for agricultural interests in Scotland can hardly be regarded as an exclusively Scottish benefit because of the value which accrues to the United Kingdom as a whole. Beasts that graze on the hills of Scotland are often eaten by people in England. However, I must not digress into that area.

This country has a common market in agriculture, and in light of that and the influence of the EEC there would not be a great deal of scope for devolving agriculture. In addition, there would be complications arising from the fact that the EEC, which has an almost predominant influence in the development of agriculture policy, can deal only with sovereign States. Only the United Kingdom could be represented in the Council of Ministers. This has been a difficulty for the West German Government in dealing with areas that are the responsibility of the Lñnder. They have to deal with the areas of the common market in Germany before the Blind Minister goes to the EEC. If we devolved agriculture, the Minister of Agriculture would be representing the Scottish Assembly's interests when matters were discussed in the EEC. He might take with him a representative from the Scottish Administration, but that would be on a grace and favour basis rather than because the Scottish Administration had a right to be represented.

These are genuinely complicating factors. They seem to indicate that it was better to retain agriculture as a responsibility of the United Kingdom Government. It will be administratively decentralised, in the sense that the Secretary of State for Scotland will continue to be the Minister of Agriculture for Scotland and will take up the interests of the Scottish agriculture and fisheries industries. Indeed, a lead has been taken by the Secretary of State in some discussions on fishery matters within the Council of Ministers. He has reported to the House and has been acting on behalf of the United Kingdom fishing industry. This is a matter in which Scottish interests are important.

Mr. Rifkind

I can see the force of the Minister's argument, but surely there will be something absurd about a future Secretary of State for Scotland being responsible for the four unrelated topics of agriculture, industrial development, electricity and the police. If, as the Minister has demonstrated, it is not appropriate that these should be devolved matters, is there not an overwhelming case for them to be put back into United Kingdom Ministries, albeit with a Scottish identity on matters relating to Scotland?

Mr. Smith

I am not trying to dodge that question. I shall deal with the position of the Secretary of State later. I wish to follow a logical pattern in my argument.

Mr. Mackintosh

I apologise for my repeated interventions. I had to leave the Chamber to meet a deputation of fishermen from my constituency. They asked whether we could table an amendment to provide that fisheries should be devolved and made the responsibility of the Scottish Assembly. The United Kingdom Government could still put their case, as the Minister of Agriculture does at present, but they want fisheries to be devolved and put under the control of the Assembly.

Mr. Smith

One point that my hon. Friend might make courteously to his constituents is that on fisheries the Scottish Assembly might have a different policy from that of the United Kingdom Government. Would the Minister have to put forward two cases to the Council of Ministers—the Assembly case and the English case? This is a genuine difficulty. I should be very glad to know what my hon. Friend's fishing constituents think about it, and how they would see the resolution of the problem.

It seemed to us to be a serious difficulty, and one which cannot blandly be swept aside, for the very reason of the importance of the Common Market in agricultural policy and, indeed, in fisheries policy because of the importance of the CFP and the influence that it has on the development of our national fishing policy.

The other matter touched upon by my hon. Friend the Member for Berwick and East Lothian was regional industrial policy. It would be extremely difficult to devolve regional industrial policy if it involved the giving of grants on a higher or a lower scale or on a different basis to industry in Scotland than those given in, for example, the North-West. It seems to us entirely desirable that there ought to be decentralisation of administration of applications for grants, as there has been under the Scottish Economic and Planning Department. That has been a great improvement. I say this as a constituency Member. The way in which grants have been dealt with by the Scottish Economic and Planning Department has been a distinct improvement on the previous treatment by the Department of Industry, because we have local officials dealing with local problems and knowing local companies, and they can assess applications for grants in a better way.

The hon. Member for Aylesbury (Mr. Raison) shakes his head. I know that he is opposed to the whole concept of regional policy. He is Southern Man and is not much interested in regional policy. I do not know whether he has ever gone to the Scottish Economic and Planning Department with an application for a grant.

Mr. Raison

I am not quite sure what that somewhat gratuitous attack on me was in aid of, but it would not seem difficult for the Department of Industry to have civil servants in Edinburgh. I do not think that this is relevant to the discussion, but as the Minister has attacked me perhaps I may make the point that one can perfectly well devolve administration in the economic field, as in others?

Mr. Smith

The importance is that there are local officials and it is a Scottish Minister who will get the matters that come up for decision and who has a knowledge of the local situation.

The main point is that it would be difficult to maintain a cohesive integrated economy and to be fair to all parts of the United Kingdom if we gave responsibility for regional industrial policy to the Assembly, because we could get wide variations in, perhaps, the level of grants, and that would cause great dissatisfactions if it was palpably unfair to the English regions as a way of dealing with the matter.

That is the logic behind our decision not to devolve regional industrial policy to the Assembly and, indeed, the rationale of having guidelines for the Scottish Development Agency, which the Conservative Party was foolish enough to vote against. Fortunately, the Conservatives were unsuccessful in seeking to delete from the Bill those guidelines, which are protection for United Kingdom interests.

Similarly with the police; this is a matter that bears on the responsibility of my right hon. and learned Friend the Lord Advocate. The same principle applies to prosecutions as applies to the police. We felt that responsibility for law and order and for enforcing the law relating to security must remain with the United Kingdom Government, because it affects laws passed not only by the Scottish Assembly but by the United Kingdom Parliament.

For reasons of almost historical accident, electricity is a matter that is dealt with by the Scottish Office, and the Secretary of State for Scotland is the electricity Minister although he is not the gas Minister or the oil Minister. Since we believe in a common energy policy for the whole of the United Kingdom, we thought that it made sense not to devolve that.

If we adopt the apparently simple approach of my hon. Friend the Member for Berwick and East Lothian, these would all be devolved. It is not just a matter of saying that this would be simple, or let us take some of them back. I think that my hon. Friend would accept that if all these matters were devolved, they would all have to be taken back. That would mean that we were centralising again and taking back to London decisions which could perfectly well be made in Edinburgh, Glasgow and other parts of Scotland. That does not seem to make a great deal of sense.

This turns on the question of the Secretary of State for Scotland. The hon. Member for Edinburgh, Pentlands (Mr. Rifkind) says that the Secretary of State will be responsible for a miscellaneous number of things. I would describe his role after devolution as primarily Scotland's economic Minister. He will be the Minister of Agriculture and Fisheries and will have all the economic responsibilities that the Scottish Office has, and would have law and order functions as well.

Certainly there is a certain disparateness about these things, but the very essence of a territorial Secretary of State is that his responsibilities are disparate. I may as well reply to the hon. Member for Pentlands by saying that I think that the equivalent of nine United Kingdom Departments for which the Secretary of State is responsible is a pretty disparate collection. The hon. Gentleman knows that the difficulty that Secretaries of State for Scotland have had is the tremendous wide range of responsibility that they have had. One of the important cases for devolution is to shed responsibility from the sort of one-man government that we tend to get in Scotland. If the Secretary of State is not dealing with teachers on Monday, farmers on Tuesday, trade unions on Wednesday, and local government on Thursday, he is off to Brussels on a Friday and no doubt dealing with someone else with a miscellaneous set of complaints on Saturday.

It is an appalling burden that is placed upon the Secretary of State for Scotland. If we do not follow the process of legislative devolution and carry on with administrative devolution we shall heap more and more responsibility on the Secretary of State for Scotland. He is also dealing with employment and training functions under the new employment agencies. The task gets greater and greater. Lifting some of these burdens and giving the Secretary of State responsibility for those matters that are not devolved legislatively but which are administratively devolved makes a great deal of sense.

There is a very important role for the Secretary of State in concentrating on these matters, and being able to concentrate on these decentralised matters, which will lead to good Government. There is plenty of responsibility there for a Minister to exercise. The present trouble is that Secretaries of State of all parties have had far too much to do.

Mr. Rifkind

If the Minister's objective—which is very reasonable—is to simplify matters, how does he justify that in regard to agriculture and industry? Whereas responsibility is now split up between the Scottish Office and the Department of Industry, in future it will be split three ways, part with the devolved Administration, part with the Scottish Office and part with the United Kingdom Department. That does not seem to be an improvement, by any set of criteria.

Mr. Smith

We are dealing with the administrative matters relating to the Scottish Office. My hon. Friend the Member for Berwick and East Lothian wants to transfer the responsibility that the Scottish Office has for them. There will be some other responsibilities transferred to the devolved legislature which are not the responsibility of the Scottish Office, which we shall be dealing with later. However, for the purposes of this argument, I am concentrating on what has been put forward in the amendment. My hon. Friend the Member for Berwick and East Lothian says that devolution would be far simpler, since we already have devolved administration, and since we have already decided that it should be devolved administrably to the Secretary of State, why not hand over the whole caboodle?

Is that the proper approach? One ought to ask whether matters should be devolved on their merits, and not whether historically they have been decentralised. I am trying to put the case for saying that those matters which would be encompassed by devolution if the amendment were favoured should not be devolved.

The other matter we are considering is the argument put forward by the hon. Member for North Angus and Mearns and adopted, in part, I think, by the hon. Member for Cleveland and Whitby (Mr. Brittan). The hon. Member for Cleveland and Whitby compained about demarcation disputes. It is probably quite easy for a Conservative Front Bench spokesman—I hope that the hon. Gentleman will forgive me for referring just briefly to Conservative policy on this matter—to make remarks about demarcation problems. If we have no devolution, we shall have no demarcation problems. That seems to me to be the policy of the Conservative Party. I understand that in Glasgow the right hon. Lady the Leader of the Opposition described herself as a passionately committed devolutionist at heart. It is obviously not to this sort of devolution. I wonder what sort of devolution it is.

Mr. Pym

A commitment to principle.

Mr. Smith

I do not think that it is what is commonly understood by a commitment in principle to devolution. I shall not bother the Committee by investigating the right hon. Lady's thoughts too far.

The hon. Member for Cleveland and Whitby is happiest when he is attacking the structure of the Bill. He is quite entitled to do that. But the difference between his approach and that of the hon Member for North Angus and Mearns is that the latter put down an alternative and was prepared to justify it, and the Conservative Front Bench does not put down an alternative but merely criticises what is in the Bill.

6.30 p.m.

Mr. Brittan

The Minister seems constantly to be mystified by this. We have said again and again that we do not favour this structure of devolution and this type of Bill. It is, therefore, absurd to expect us to produce something out of a Bill which is conceived by the Government in a mould which is unacceptable to us. Our duty is to say that if we are to go along this road, there are particular problems on particular aspects along that road, and that these alternatives on that road seem to be preferable. The Minister would perform a better service to the House if he dealt with the arguments on the merits of the alternative ways of achieving what he wants but what I do not want.

Mr. Smith

I am doing that. The hon. Member for North Angus and Mearns offered an alternative. I am not sure whether the hon. Member for Cleveland and Whitby favoured it. We do not have a Conservative Front Bench alternative but we do have an interesting alternative from the Opposition Back Benches.

The hon. Member for North Angus and Mearns says that we should take a list of matters which were in the Northern Ireland Constitution Act 1973 and put them into this Bill, but there is a difficulty in that. If we accepted the amendment, many matters that we do not propose to devolve would be included—for example, energy. I am sure that the hon. Member would be prepared to amend his suggestion to ensure that energy is retained, but that is one of the difficulties of extracting something from another Bill.

It has been said that it would be easier if we reserved the matters for which the United Kingdom will be responsible instead of specifying the matters to be transferred. One has to decide what one is to reserve and what one is to devolve. It is a choice of presentation and technique, whether one does that by specifying that which is to be devolved or that which is to be reserved. If one specifies what is to be retained for the United Kingdom Parliament, should something be omitted that matter would be devolved automatically. It is better to specify that which is to be devolved so that matters which are not specified are retained as a responsibility of the United Kingdom Parliament and then to transfer to the Assembly any other matters which are thought necessary.

I believe that we have come near to defining precisely what is to be devolved, although I agree that that might be thought to be impossible. I do not claim that everything in the Bill is perfect. There may well be mistakes in it, but it is better to make clear what is to be devolved.

If we put in the Bill all those matters that are to be retained, it would create an immensely wide proposition. That would be the consequence of trying to interpret the Act if all it contained were a general provision for peace, order and good government. In the Canadian case this proposition was construed by the Judicial Committee of the Privy Council to be extremely wide. We have chosen to specify that which is devolved for a number of reasons.

We have decided that it is better to concentrate on the positive and focus on what is to be devolved. That makes it easier for those who read the Bill to gain an understanding of it. It gives a degree of shape to what is devolved. It is better to do that than to cause people to guess what has not been retained. This method permits greater accuracy. A matter either falls within the devolved sphere or it does not. A person reading the Bill does not have to check whether a matter is included in a long list of reserves. This is also important for the Scottish Assembly and Executive. They will be clear about what they can do and what they cannot do.

Hon. Members have referred to the number of statutes which are mentioned in the Bill. They have asked, for example, why we have a long list of statutes which explain that Section 1 of an Act is devolved and Section 3 is not. A great deal of work has gone into specifying the details. It is the essence of precision and accuracy. If we had not done that it would be hard for anyone to decide which parts of a statute are involved and which are not. They would ask whether Section 1 of an Act is devolved or not. If we had not gone into that complication in the Bill, I would be accused of being imprecise.

Mr. Mackintosh

I recognise that if the system is to last for a number of years it will, like every system involving a subordinate and superior body, be flexible and moveable. It is the delimitation that will cause trouble. The Minister's precision worries me.

Mr. Smith

I do not follow that argument. One of the important things that the Administration will have to know is whether it has the capacity to deal with a certain matter. If there is doubt, the Assembly will not be clear. That will lead to a great deal of official confusion. It is better that Parliament knows precisely what powers it grants to the Assembly.

If we adopted another approach I would be deluged with complaints because of the lack of clarity. I take the point that there will be a flexible relationship between Parliament and the Assembly. But the Assembly must be certain what it can and cannot do. If the United Kingdom Parliament chooses to legislate later, let it make clear what it is doing. That is the virtue of having this precision and accuracy in the Bill. It is imposible to achieve that accuracy by a list of reserve matters and leaving that which is devolved to implication. We do not want confusion. We want clarity above all else.

Mr. Dalyell

I am entirely on my hon. Friend's side of the argument on the question of the need for clarity. I believe that the Minister has received a submission from Mr. Pritchard of the Law Society of Scotland saying that the legal profession is worried about this. Can he indicate his response to that submission?

Mr. Smith

I have received representations from a number of legal bodies on this matter. I have replied to the Law Society of Scotland but I disagree with its view. Much of its approach is mistaken and I have said so in my letter. I do not agree with its approach. Its memorandum confuses the vires and override provisions, which surprises me, since it comes from a legal body.

Mr. Buchanan-Smith

Does the Minister agree that precedence is also important? Did the Government of Ireland Act lead to difficulties which has led the Minister to decide upon a different approach?

Mr. Smith

It is difficult to make close comparisons with that Act. The involvement of Government was different in 1920. Even the statute book looked different then. As the hon. Member knows, the Government of Ireland Act involved not only a British-Irish dimension but a North-South dimension. Only part of the Act was activated. In 1920 social welfare and social security were not the matters that they are today. As a concept energy was not the matter that it is now. A whole range of Government responsibility has changed.

There is the question whether it would have been wise to follow the approach of that Act or to follow an approach roughly similar to that of the Northern Ireland Constitution Act 1973, which was hastily put together and hastily considered by the House. The consideration of that measure makes the treatment of this Bill look like a long, leisurely stroll. We bashed that measure, of great constitutional importance, through the House in two or three days. I do not know whether that is a precedent that we should follow, but I am arguing that we have a better approach here. I believe that it gives greater protection to the interests to be reserved. It precludes the possibility of devolution by accident, by failure to identify a statute or subject in a particular part of the Bill. The Committee must be clear what it is devolving and know precisely what it is. Therefore, this approach is better.

Mr. Brittan

With respect, I do not think that the Minister has answered the point put by my hon. Friend the Member for North Angus and Mearns (Mr. Buchanan-Smith). Although it may be true that in 1920 government was much simpler and all sorts of matters did not arise, is it not right that as long as there was a devolved administration operating in Northern Ireland it operated under the broader distribution of powers, and that that continued into modern times? My hon. Friend was asking whether there were defects arising from that method of division of powers which led the Government to adopt a different approach. If there were, what were those defects? If there were no defects, is not that a powerful argument for retaining that approach in dealing with devolution in Scotland?

Mr. Smith

It would be a powerful argument if that approach were intrinsically better. We wondered whether we should specify reserved or devolved powers, and came to the conclusion that the latter approach was better. It seems to me that that is the right way. Without doing further research, I cannot identify whether the Government of Ireland Act 1920 approach led to difficulties. But we must bear in mind that in Northern Ireland we were not dealing with a normal political situation. There was one political party in power in Northern Ireland almost constantly over that period, and what might be called normal political divisions and exchanges did not occur. That is a great pity, because for a pilot scheme for devolution it would have been much more useful to have the sort of political divisions and considerations which apply in the United Kingdom rather than the undeveloped situation in Northern Ireland.

Mr. Brittan

If what the Minister is saying is correct, it is fantastic that in considering which of two approaches to adopt towards the distribution of powers the Government did not consider the lesson to be learnt from our own homegrown experiment in devolution in Northern Ireland, and that the hon. Gentleman needs more research to see whether that led to disadvantages.

Mr. Smith

If the hon. Gentleman is to be so aggressive, he must be careful not to misinterpret me. I said that we had considered the two methods and came to the conclusion that to specify the devolved matters was intrinsically better. Without further research I cannot give specific examples in the 1920 Act. I have indicated generally that there were other considerations in different circumstances that led to its being formulated in the way that it was. I do not think that it is such a valuable precedent as the hon. Gentleman or the hon. Member for North Angus and Mearns suggested. We must decide which is the better way in principle and practice, and it seems to me that the way in which we have drafted the Bill is better.

In view of the complexity of a great deal of modern legislation, it is not easy to say with a sweep of the hand "We shall in principle devolve responsibility for such and such an area". We have to fence it in by showing clearly the range and limitation to avoid confusion after the Assembly came into operation.

I hope that I have given some guidance to the Committee. I am grateful to my hon. Friend the Member for Berwick and East Lothian for raising the whole question and I am grateful to the hon. Member for North Angus and Mearns. Their speeches were models of lucidity and compression, and I thank them for the way in which they developed their arguments. But I do not think that their amendments merit adoption.

6.45 p.m.

Mr. David Price

The Committee is grateful to the hon. Member for Berwick and East Lothian (Mr. Mackintosh) for raising the whole question of the residual powers remaining to the Secretary of State for Scotland. We are also grateful to the Minister for his account of how he saw them working.

Has not the Minister omitted one important element in the continuing rôle of the Secretary of State under the arrangements in the Bill? That element is that he will be the spokesman in the Cabinet not only for his remaining Department, but, more importantly, for all the financial claims of the Assembly and Executive, because in the parts of the Bill that we have already disposed of we have added no taxing powers to the Assembly or Executive.

We have heard talk of the Lônder in Germany, and so on. They have some taxing powers, limited, it is true. That is a big difference. The Minister spoke about the Province of Quebec, but that has considerable taxing powers. If I am wrong, I shall gladly give way to the Minister.

This matter raises the issue that has bothered me throughout and continues to bother me. We are now considering what matters should be devolved and whether they should be specified. I have much sympathy with the Government's belief that they should be spelt out, as they are in general terms, rather than that there should be reserved powers retained at the centre.

I like the Minister's approach, but the whole argument is irrelevant as long as there is no devolution of taxation and supply powers. This remains the key to the whole matter. The Minister talked about industry. We have been talking about regional policy, but that involves a spending of public money provided from the centre for the whole of the kingdom. If Scotland were to have its own rights in these matters, it should logically have the right to raise taxes, if it wants to spend more. To do it in vacuo is totally illogical.

I return to the principle well laid down by Sir Frank Layfield and his colleagues in their report on local government finance: Whoever is responsible for spending money should also be responsible for raising it, so that the amount of expenditure is subject to democratic control. Under the arrangements proposed by the Government, which have not been altered in the least during the passage of the Bill, we have the seeds of permanent conflict between the Scottish Executive and Assembly on the one hand and the central United Kingdom Government and, by implication, this House on the other hand. The Secretary of State's main job will be as a go-between between those two conflicting pressures. That was a view very well explained by Professor Tom Wilson in an article over a year ago in The Three Banks Review. He said: the divorce of taxation from expenditure may be fundamentally bad in that it does not encourage a sufficiently responsible attitude towards expenditure. That must remain our key concern as long as the Government are not prepared to give devolved taxing powers.

That is a basic difference between the Government's approach to devolution and the classic Gladstonian approach to home rule for Ireland, which I quoted on Second Reading and to which I return as the model for how we should approach these matters. We remain with a situation that is bound to lead to aggro between Edinburgh and Westminster. It cannot be otherwise.

Later this evening we shall go through Schedule 10 and discuss whether this or that power should be devolved. It will be an irrelevant discussion unless we deal with the problem of taxing powers. I hope that the Minister will agree with me on this. It is no good going ahead with a devolution that is technically unsound, because the basic problem in running a democratic society is how to bring together those responsible for expenditure with those responsible for raising taxation.

As the Government are refusing to do that, however, the poor old Secretary of State for Scotland—I have a great deal of sympathy with the Minister's comments about the burdens of that great office—will be in an even worse position than he has been hitherto. I have the greatest sympathy for anyone who accepts that office. The Secretary is going to be the butt in between in the continual argument between the Scottish Executive and Assembly and the Treasury here for the United Kingdom. At best he will be the go-between.

There is much logic in saying that if powers are to be retained it is better that they should go to United Kingdom Ministries and that then we should abolish completely the office of Secretary of State for Scotland. I put it to the Committee that unless and until taxing powers are devolved to the Executive and Assembly, someone like the Secretary of State will continue to be needed, and it is because such an office is needed that, attracted as I am to the logic of the amendment, I find it difficult to accept it. I believe that this is the way in which we should proceed, but with it we have to devolve taxing powers. Until that is done, this whole exercise in devolution will frustrate the purpose of those who support it.

Mr. Dalyell

If my memory serves me right, I recall that in that same article Professor Wilson pointed out that there would be in the Assembly people who, not dishonourably but as a matter of principle, would want to flout financial disciplines precisely because they could see that, by doing so, they would get those very financial powers that had eluded them and that they wanted. If the Assembly were to start with financial indiscipline, those Members would see it as part of their case to flout financial disciplines in order to get the very financial powers that they wanted. That should be said. I am not saying that it would be dishonourable. It would be logical political pressure.

I agree that under the Government's proposals the office of Secretary of State becomes a non-job, and that if it does not go immediately, it will go within the early years, if not within months.

There have been certain occasions in these debates when I hoped that senior Ministers, such as the Home Secretary and the Chancellor of the Exchequer, would be present. This is no disrespect to my hon. Friend the Minister of State. It is merely that I would have liked the Labour Cabinet to hear the views expressed at the beginning of this debate, pointing inevitably to the truth of the situation, that we are bound at the very least for a federal State. I wish that my Government would at the most senior level really face up to the choices. There are only three possible choices—a federal State, roughly the status quo, or the point of view represented by the Scottish National Party.

The First Deputy Chairman

Order. We started with this on day 1. We are now on day 8.

Mr. Dalyell

I will come to the amendment in great detail, Sir Myer. It is because these truths are uncomfortable that I am commenting on what others have said.

The First Deputy Chairman

Order. They are not uncomfortable to the Chair. The Chair's duty is to see that we carry out the Standing Orders of the House. The principle of whether we have an Assembly has been disposed of and does not arise on this amendment.

Mr. Dalyell

It may be your opinion. Sir Myer, that it has been disposed of but, with respect, it has been—

The First Deputy Chairman

Order. The debate on Second Reading has been disposed of.

Mr. Dalyell

Then I will come to the particular point raised on the amendment.

My hon. Friend the Member for Berwick and East Lothian (Mr. Mackintosh) raised the key question of whether Mr. Kerr Fraser, the new Permanent Secretary to the Scottish Office, would opt to become a servant of the Assembly or decided to remain part of the Civil Service. I agree that this is a watershed decision. My suspicion is that, if the Bill goes through, knowing the realities of power, Mr. Kerr Fraser will opt for the Assembly, but if he does so, it will involve very big issues for the Home Civil Service, and the issue here is neither more nor less than the break-up of the Home Civil Service and all that follows from that. I think that I have the assent of my hon. Friend the Member for Berwick and East Lothian on that.

Now I come to—

The First Deputy Chairman

The amendment?

Mr. Dalyell

Yes, Sir Myer, very precisely.

I want to follow the speech of my hon. Friend the Minister of State. During the recess I had complaints from both the Dean of the Faculty of Advocates and Mr. Cameron, the faculty's expert on these matters. They authorised me to say that they are still worried about the vagueness of the schedules. They say that their complaints in their document of February 1977, whch many of us have had, have not been met.

It is a misfortune of this Committee that there is no Back Bench Scottish lawyer on this side of the Committee. I am not a lawyer, but my hon. Friend the Minister of State is. He asked for concrete examples, so I shall refer to certain specific examples given in a document of February 1977, which Mr. Kenneth Pritchard, Secretary of the Law Society of Scotland, says still stands.

On page 2, the document says: The Council has not found it easy to trace any discernible principle of rationale upon which the subjects to be devolved have been selected, and is of the opinion that this will cause difficulty for the Judicial Committee, or any other Court, in attempting to provide a corpus of consistent rulings on the legislative competence of the Assembly. I was going to make a short intervention, but my hon. Friend asked for concrete examples, so I turn now to the question of company law. The document says that the Council of the Law Society of Scotland has considered whether the law relating to limited liability companies is devolved, and goes on to say that the Bill provides that the civil law of natural and juristic persons and unincorporated bodies is devolved. It might be thought that the law relating to companies, as juristic persons, is devolved—although the reference to unincorporated bodies (presumably excluding incorporated bodies, such as companies) would immediately suggest a doubt. Another doubt would be raised by the specific reference in Group 23 to 'bankruptcy' with no corresponding reference to liquidation. The document adds that the Bill goes on to provide that there is not included in any of the Groups in this part of the Schedule (Part 1) the law relating to (a) any form of public registration or licensing in relation to those matters (other than public registration or licensing included in or related to any other Group). I do not want to take up the time of the Committee by going on with these examples. They are all in writing. The document adds, however: Presumably the view is taken that the law relating to companies and liquidation should not be devolved because that would involve a risk of inconsistencies being introduced, which would be unacceptable by reason of the importance of maintaining 'a common framework for trade'. The Council has had difficulty in understanding the basis for distinguishing between companies on the one hand and partnerships on the other; between liquidation, which is not devolved, and bankruptcy which is; particularly in view of the professed aim of developing Scots Law as a 'coherent system'. On the subject of the law on employment, on page 5, the document says: The Council is therefore uncertain as to how far the Assembly will have legislative competence in this field. 7.0 p.m.

On page 6 it states that the Society has not found it easy, in dealing with these basic and obvious examples, to determine what is and what is not devolved, or any principle upon which distinctions are made; and expects that similar difficulties may be experienced by members of the Assembly. It is of the opinion that the draftsmanship … will require to be improved if dispute and uncertainty are to be minimised. May I make so bold as to turn to the memorandum, which, I am told by Mr. Cameron and the dean of the faculty, Dean MacKay, is still relevant in that the main objections have not been met? Page 4 of the document issued by the Faculty of Advocates says that the terms … are so wide and indefinite that they place no real limit on the power of the Secretary of State to refer a Bill. It is difficult to conceive any matter on which the Assembly can legislate which could not be said to affect indirectly a non-devolved matter. Page 7 of the document refers to borrowing powers, and it is for this reason that it is of special relevance to what took place yesterday. We should have discussed this issue yesterday, but we never got round to it. [Interruption.] It is not the fault of my hon. Friend the Minister of State and neither is it my fault. A situation has arisen in which I do not think it can be gainsaid that it is unfortunate that the Committee has not considered this matter. The Faculty of Advocates says that the Bill is designed to prevent the Assembly from altering the borrowing powers of any public body. It goes on: Unfortunately, however, 'public body' is not a term of art, and it is very difficult to decide what the extent of this paragraph is. For example, is a company incorporated by Royal Charter a public body? Or a trust incorporated by private Act? A similar uncertainty applies in the the use of the term 'body' … It would probably be preferable to list the bodies to which paragraphs 3 and 4 are intended to apply. I am conscious of the time but I wanted to go into this at some length because the opinion of the Faculty of Advocates and the Law Society on this subject is relevant.

Some of us will be continuing to ask these bodies whether, with their professional expertise, they continue to be worried. When these major law bodies in Scotland complain about the vagueness of legislation which will come from the House, which members of these bodies will be expected to determine, we have to go on asking whether they are satisfied. The Minister of State, in argument with my hon. Friend the Member for Berwick and East Lothian, rightly emphasised the need for clarity. We have a right to be assured by those who know in the Scottish legal profession that they are also satisfied that clarity exists.

Mr. Gordon Wilson

This has been a useful and valuable debate. It has been a reflective one in many ways—a debate in which many arguments have been addressed with cogency and clarity. It was interesting to see the battle between the hon. Member for Cleveland and Whitby (Mr. Brittan) and the Minister of State when they tackled the main definitions in the Bill. For once, as I listened to the hon. Member for Cleveland and Whitby, I found myself more in agreement with him than with the Minister of State. It seemed that there was a logic implicit in what the hon. Gentleman was saying which was not contained in the Minister's speech.

The Minister made a valiant attempt to defend the indefensible. He has sought a method of spelling out in detail the functions and powers of the Scottish Assembly. This is the area that is bound to lead to difficulty in future. I have some comments on the possible position of the Secretary of State for Scotland. It is clear that whatever happens after this Bill is put into effect the Secretary of State for Scotland will not be occupying the position that his predecessors have occupied. His role, as well as his duties, will have changed. It is clear that within time the office of Secretary of State will dwindle away.

It has only been over the past 100 years that a Secretary for Scotland was created who, in time, was elevated to the position of Secretary of State with a seat in the Cabinet. The powers were given in a gradual fashion. It is clear that if this Bill becomes an Act, approved by the referendum, the office of Secretary of State will change dramatically. I believe that it will disappear. If that is so it is probably desirable that we should address ourselves to some of the arguments contained in the speech of the hon. Member for Berwick and East Lothian (Mr. Mackintosh). If we are to have a situation in which Scotland's representation in the Cabinet is reduced—a representation which, I may add, is only about one in 24, due to the unfortunate inability of Scots Members of Parliament to get into the top political ranks in the United Kingdom—it would be desirable that, from the outset, the First Secretary of the Scottish Assembly should enter into a direct negotiating relationship with members of the Cabinet or with the Prime Minister. There are strong arguments for that situation and for it to be recognised.

What is clear is that if we adopt the detailed and specified functions that are being given to the Scottish Assembly, set out in the Bill, and particularly in Schedule 10, we shall enter a maze. It would have been better in my view—a view shared by the hon. Member for North Angus and Meatus (Mr. Buchanan-Smith), and by the Liberal Party in relation to last year's Scotland and Wales Bill—to adopt the Northern Ireland format or at least that format that was contained in the Government of Ireland Act 1920. If that had been adopted it would have given an opportunity for flexibility and for the powers to be settled and worked out. If there were any doubts about the reservations there would be a role for the courts to play.

As it is—and here the hon. Member for West Lothian (Mr. Dalyell) is correct—the Scottish legal bodies are in doubt about the method adopted. I refer initially to the report of the Law Society of Scotland on the Scotland and Wales Bill, even accepting that there has been a great improvement in the drafting of the Scotland Bill as compared with its predecessor. The Council of the Law Society of Scotland says on page 2 of its report, that Schedule 6, now Schedule 10 prescribes the groups of subjects which are devolved. The Council has not found it easy to trace any discernable principle of rationale upon which the subjects to be devolved have been selected, and is of the opinion that this will cause difficulty for the Judicial Committee, or any other court, in attempting to provide a corpus of consistent rulings on the legislative competence of the Assembly. This attitude was reflected recently in an article that appeared in the Journal of the Law Society of Scotland, when a reference was made in these terms: In answer to the White Paper 'Our Changing Democracy' the Council, as long ago as January 1976 stated unequivocally that an attempt to define too precisely the devolved subjects could be productive of dispute. The Council suggested that devolved subjects should be defined by stating in a general way what was or ought to be reserved to the United Kingdom Parliament. Regrettably this view was ignored and the Scotland and Wales Bill attempted in Schedule 6 to specify by definition the devolved matters. In its memorandum on that Bill the Council reiterated its concern at this method of definition. Yet again the Council's views have not borne fruit, for the devolved issues are once more spelt out in detail in Schedule 10 of the new Bill. That is the up-to-date view, as at December 1977, of the Council of the Law Society of Scotland, unless it has intimated to the contrary to the Minister, which would be surprising. Its proposals would make for a much more coherent expression of the responsibilities of the Scottish Assembly and the Scottish Executive. I accept that it is probably a question of approach, that there is a choice to be made.

The analysis conducted by the hon. Member for Cleveland and Whitby was, in this instance, a good one. I got the impression, from what the hon. Member was saying, that it appeared that the Conservative Party was once more prepared to make some sort of lurch in its attitude to devolution. It seemed that today the hon. Member was more in agreement with the hon. Member for Berwick and East Lothian and with his hon. Friend the Member for North Angus and Mearns than he would have appeared to be from previous debates. However, I am sure that whatever is said from the Conservative Front Bench it will not inhibit its occupants from voting whichever way they feel at the time, because they have an eccentric record in that direction.

There is one valuable point that could be made, but that has not so far been mentioned. This relates to the transfer to the Scottish Assembly of powers now held by the Scottish Office and the Secretary of State for Scotland. The Explanatory and Financial Memorandum says that the Bill will result in increased public service manpower and increased costs. It says that more than 200 staff will be wanted for the manning of the Scottish Assembly and it adds that the number of civil servants in Scotland will increase by about 750 over forecast levels. This figure includes staff to support the Scottish Comptroller and Auditor General. I do not know how many staff that Department will require, but there will be staff savings on the present set-up, because if the Scottish Comptroller and Auditor General is to look at the affairs of the Scottish Assembly, it will be done by the staff who do that at present for the Secretary of State for Scotland. His budget, therefore, will be reduced, or at any rate it could be. If there were a clarification of the powers, and if the powers now held by the Secretary of State for Scotland were transferred to the Assembly, even allowing for an increment to meet the work force for the Scottish Comptroller and Auditor General, there would be a saving. I am sure that 750 civil servants will not be necessary, because civil servants employed on work for the Secretary of State for Scotland will do similar work for the Scottish Assembly, and there will be a financial saving there each year.

I suspect that some of the 750 Civil Service jobs are intended to deal with co-ordination. We shall have the Secretary of State for Scotland monitoring the activities of the First Secretary to the Scottish Assembly and his Ministers, and in turn the Treasury will be monitoring what the Secretary of State for Scotland is doing.

One thing offered by the amendment put forward by the hon. Member for Berwick and East Lothian is that it will save on some of the expenditure that has been predicted and there will be a much more functional transfer of powers. That will be far better all round, and, therefore. I commend the amendment to the Committee.

7.15 p.m.

Mr. Stokes

You have said, Sir Myer, that there are many more amendments to be considered, and therefore I shall be brief.

As always during these debates, I find that I learn a great deal from the speeches from both sides of the Committee. What I seldom hear, apart from what the Minister, who is very fluent, says, is any convincing defence of the different clauses of the Bill by Members on the Government side.

The amendment, moved with intellectual distinction and great candour by the hon. Member for Berwick and East Lothian (Mr. Mackintosh), amounts, in principle, to a further step in the direction of making Scotland a federal State within, unfortunately for his purposes, a unitary United Kingdom State. Perhaps he wants a federal State—I do not know—but as we are not to have one, and do not have one, this extra power for the Scottish Assembly will be illogical and difficult.

I do not want a Scottish Assembly and therefore I can hardly be expected to approve of the amendment, but I am concerned about the rôle of the Secretary of State for Scotland and of the 71 Scottish Members who will be in this Parliament. It seems that this great post of Secretary of State for Scotland will become a veritable bed of nails under the new dispensation, whatever happens. His limited scope in this House will be equalled only by the limited scope of the unfortunate 71 Scottish Members who will remain here. That will be a loss to the House, and a diminution of its powers.

Once again, here we are, half-way through the 14 days allotted to debating the Bill under the guillotine procedure, debating an amendment that goes to the heart of the contradictions in the Bill. This afternoon we heard a good deal about the attempt to divorce policy from administration in respect of large areas of highly important political subjects, which will cause only further confusion in an extremely confused situation.

This is rather like trying to play a game of chess. One has to decide not only where the king and queen are, but also the knights, the bishops and pawns. We have here the frontiers of power between the Secretary of State for Scotland and the United Kingdom Parliament and the powers of the new Assembly. I think that these frontiers will prove to be extremely foggy and indistinct. What I am certain of is that, whatever its political complexion, the new Assembly will demand more and more powers to itself. No doubt that is what the hon. Member for Berwick and East Lothian wants, and some of that will be effected by the amendment.

We have once again put ourselves into a state of great confusion. I missed only about three minutes of the speeches that have been made today. I admit that I might have missed something vital, but it seems to me that it will be difficult to pass an examination in Scotland on what the powers will be and on the different people involved in this highly confused situation.

Mr. Mackintosh

I am sure that the hon. Gentleman would not want to misinterpret me. I am not arguing that the Assembly should demand more and more power. I suggest that if the approach is adopted that carves out subsection after subsection of the devolved powers the Assembly will adopt that line, but that if the grant of powers is clear-cut the Assembly will not demand more powers, and may even hand some back.

Mr. Stokes

The hon. Gentleman is entitled to his view.

I hope that the Minister of State, who is always very courteous and obliging, will not take this amiss. He goes through everything at great speed and with great complacency, as though the whole thing is a piece of cake. I find it all extremely indigestible, as I think do most people in the United Kingdom, and certainly most English people.

Mr. Sproat

The Committee is in the debt of the hon. Member for Berwick and East Lothian (Mr. Mackintosh) today, as it was yesterday, for enabling us to discuss two extremely important aspects of the Bill. As always, our sorrow is that the shadow of the guillotine prevents us from exploring the matter in as much depth as we should like to do. Because we are all anxious to get on to other amendments and groups of amendments, I shall be more than usually brief.

I use this debate on the powers that are to be devolved to the Scottish Assembly to say, first, that, grateful as I am to the hon. Member for Berwick and East Lothian, I cannot support his case, or that of my hon. Friend the Member for North Angus and Mearns (Mr. Buchanan-Smith), which will come as no surprise to them. The Minister of State is probably shaking with fear and embarrassment that I shall go on to say that for once I shall support him, but I assure him that I shall spare him that by abstaining, should there be a Division.

I shall use this debate to show how these powers, whether they be devolved under the method favoured by the Minister of State or the methods favoured by my hon. Friend and the hon. Member for Berwick and East Lothian, will lead to major losses of influence for Scotland. There will be four major losses for Scotland consequent upon this Bill's becoming an Act in anything resembling its present form.

First, the Secretary of State for Scotland will lose three-quarters of his powers. That is a most generous estimate. In Scotland we have always believed that it was an advantage to have our own Secretary of State in this House. The best that we can hope for is a Secretary of State shorn of three quarters of his powers. The worst we can hope for, as the hon. Member for Dundee, East (Mr. Wilson) said, is that we shall have no Secretary of State at all.

That is the first major loss. I hope that when they read of this debate through the media the people of Scotland will remember this fact, particularly in terms of the referendum. I hope that they will remember the inevitable losses for Scotland which this Bill will mean.

Second, we shall lose the particular and individual Scottish voice in the Cabinet which is where the decisions with regard to Scotland and other parts of the United Kingdom are most importantly made. They are made not in the Scottish Assembly but in the Cabinet, and we shall have lost that voice in the Cabinet. Whatever view one has of different Secretaries of State of different political parties, none the less the fact that we in Scotland have our own Secretary of State is an advantage which I am surprised that hon. Members representing other parts of the country do not resent more often. My hon. Friends are very modest and patient in the way in which they allow Scotland to have this advantage.

The hon. Member for Liverpool, Walton (Mr. Heffer), who graced our debate earlier, often tells us that there is a higher level of unemployment in Liverpool than in Glasgow. Does he have a specific voice in the Cabinet with which to put the views of Merseyside? No. That advantage will be lost to Scotland.

Mr. Gordon Wilson

It may well be that one reason why certain English Members do not want an English Secretary of State is that they have come to the conclusion that a territorial Secretary of State is not much good and that they prefer the existing system. Does the hon. Gentleman accept the remarks made in disclosures in the Crossman diaries and in the interview with Sir Richard Marsh on television recently, when both gentlemen indicated that the Scottish Secretary of State was in their eyes one of no great merit with regard to general policy matters? One cannot say that the right non. Member for Kilmarnock (Mr. Ross) is not a figure of some standing as an individual politician, but they tended to discount him as a Secretary of State.

Mr. Sproat

The manner in which Sir Richard Marsh managed British Rail would not encourage me to accept his judgment on other matters. I also disagree with the hon. Gentleman. I regard the right hon. Member for Kilmarnock (Mr. Ross) as a formidable figure, irrespective of the political party to which he belongs, and I would always like to have him on my side. It is a loss for Scotland when a man of that calibre does not speak for Scotland in Cabinet.

The third loss that Scotland will suffer as a result of the powers to be devolved under the clause is financial. Scotland will lose about £500 million a year, a little more or a little less. There is no way in which this House, when there is a devolved Assembly in Scotland, will allow Scotland to retain the 20 per cent. or 25 per cent. per capita greater sum than people in other parts of the United Kingdom receive.

Not only shall we have a shorn Secretary of State and lose our place in the Cabinet as well as £500 million, but we shall also inevitably lose some, if not the majority of our 71 Members of Parliament. For Scotland to have a diminished representation in this House which will be responsible for matters such as taxation, oil, defence and foreign policy, must be a diminution of the control and influence in Scotland over these vital matters.

Perhaps I may also, not too immodestly, add that there would be a loss to this House if it were to lose half of its Scottish Members. Some Members may be better or worse than others, but the House of Commons as a whole benefits from our presence. Just as Scotland itself would lose out in influence if its number of Members were to be reduced—

Mr. Mackintosh

The hon. Gentleman is making a Second Reading speech.

Mr. Sproat

I do not know why the hon. Gentleman is getting so worked up. He is rarely present in the Chamber even during those debates that he initiates. He should not deny other hon. Members who have sat throughout the debate the chance to say what they wish to say. He says that this is a Second Reading speech. I happen to be referring to broad points because I believe it is the broad and relevant points which most demonstrate the fallacies in the clause and in the amendment. That I am perfectly entitled to do and I shall not be restricted, except by the Chair, to those narrow points which would forbid me from pointing out that the powers devolved under the Clause will mean that there must be fewer Scottish Members in this House.

I close by emphasising that Scotland will lose three-quarters of the powers of the Secretary of State for Scotland, its voice in the Cabinet, about £500 million a year which is pumped into Scotland through the Treasury as well as the benefit of 71 Members of Parliament. If we lost three-quarters of our Members of Parliament there would be only 17 Members instead of 71. That would be a disaster for Scotland and for this House.

Mr. Budgen

The hon. Member for Berwick and East Lothian (Mr. Mackintosh) is a distinguished constitutional historian. My hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) is a distinguished constitutional lawyer. They are both agreed on one proposition—that in drawing up these devolved and semi-devolved powers which are set out in the relevant schedules the most important principle that ought to have guided the Government was the need for clarity and certainty.

My hon. Friend the Member for Cleveland and Whitby pointed out that in the Irish legislation it had been possible to define these devolved powers with a great deal more clarity and certainty. I know that it is always a pleasure for both politicians and lawyers to enjoy a bit of fun at the expense of parliamentary draftsmen. But as I listened to these debates, and the persistent criticism about the schedules lacking clarity, I asked myself whether there ever had been any intention to achieve clarity.

Was it perhaps the wish of those highly intelligent and somewhat Machiavellian gentlemen who sit on the Benches opposite to achieve a situation of chaos? I noted that with considerable amusement and felt that these devolved powers were defined in a manner calculated to give rise to the greatest uncertainty, conflict and misunderstanding.

These confused powers are fenced in by two very clear reserve matters. On the one hand, there was the clear certainty that the United Kingdom Parliament would retain firm control over all financial and economic matters and that, as has been pointed out in earlier deliberations, means a very substantial diminution in the power of the Scottish Assembly with regard to perhaps 95 per cent. of the legislation that it might seek to consider.

I agree with my hon. Friend the Member for Cleveland and Whitby that one has to look at the context in which these powers are defined. I looked at Clause 62. It is plain there that the reserve powers which the Secretary of State has in respect of so-called Community matters or foreign obligations are defined in the widest possible terms—not only in the widest possible terms but in terms which can be interpreted in the most subjective way by the Minister concerned. So we have the classic situation of the dishonesty that lies at the very heart of this proposal for devolution. We have a confused offer of increased powers to a Scottish Assembly, with all the appearance of a national Parliament.

7.30 p.m.

But in spite of the confused offer of apparent increased power, every attempt is made to retain at Westminster the reality of power, whether in terms of controlling finances and economic policy or controlling the multiplicity of internal matters which may affect external relations. They are to be firmly controlled here at Westminster.

The Bill is a deceit entered into for electoral purposes. The reality is a situation of the gravest instability which is perpetrated by a dishonest Government understanding well that the purse strings and all those multiplicity of matters which impinge on our relations with other powers remain here.

So it is that the capacity for interference is vast. Where there is that capacity for interference it is better to leave the matters confused. We are not dealing with a technical matter or a little bit of a sally at the expense of the highly intelligent parliamentary draftsman. The confusion in this definition is an intentional confusion. It is an intentional confusion so that power in the last resort may remain here.

Mr. David Crouch (Canterbury)

I do not want to mislead the Committee in any way, but for once I may dismay the Minister of State by not supporting him as I have done on other occasions in the sittings of the Committee, and cause embarrassment to myself at some of the things that he said about my complete understanding of the whole process of devolution.

Like the hon. Member for Berwick and East Lothian (Mr. Mackintosh), though to a lesser extent, I lecture on the workings of this Parliament, sometimes to foreign civil servants. I always tell them that we have a Committee procedure for amending Bills in which we take note of the representations and go through the clauses line by line and word by word. In this way we tidy up legislation and make it as near perfect as possible. We have that opportunity today. The hon. Member for Berwick and East Lothian has made a contribution to improving the Bill by his amendment. The hon. Member is a devolutionist. He believes in it, as I do. He is not attempting to produce chaos. My hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) voiced his dismay that there might be chaos under Clause 62. But the hon. Member's amendment seeks to make a much more general and broad sweep of devolved matters to the Assembly and the Executive.

Reference has been made this afternoon to the Government of Ireland Act 1920. I, too, go back to that Act time and time again. I cannot help thinking that, with all the inexperience that we in the British Parliament have over the years on matters of devolution, we knew more about it in 1920 than we seem to know about it today. There was one aspect particularly on industrial problems and production covered by the Government of Ireland Act 1920. The Act stated that articles which are brought into Great Britain … from Ireland, or into Ireland from Great Britain … shall be deemed to be articles exported or imported". That was a clear, broad, general statement. There was no question of Ireland being able to levy taxes and excise duties on these products at all. That was covered in another clause.

There is another factor which I remember from my industrial experience up to 1973. It was that if one was a manufacturer in England seeking to establish a factory in any part of the United Kingdom, one part of the United Kingdom which offered great attractions was Northern Ireland. The Government there sought to attract industry. They had devolved powers and they had an incentive to attract. They could compete with the other regions of the United Kingdom, often with greater effectiveness. Today, under direct rule, that is not the case. Industry is directed to Northern Ireland. It is the Government of Southern Ireland, strangely enough, that can compete more effectively, because without stretching the phrase too far, there is complete devolution and complete separation. It is another country. But it can offer very attractive terms.

By making broader devolution responsibilities in the way that was done under the Government of Ireland Act 1920, rather than the specification of a half step towards devolution, which the Government are proposing, a better deal was done for Ireland in 1920 than is proposed in this clause of the Bill. So I agree that if one believes in devolution the hon. Member's amendment is a valuable and constructive one. I strongly endorse it, but the Committee will not follow my example, because it knows that I believe that devolution is a good step.

Mr. Mackintosh

I am grateful for the way in which hon. Members have responded to the amendment. We have had a helpful discussion. I am grateful to my hon. Friend the Minister of State, too, for his detailed and careful answer. He tried to suggest that the functions of the Secretary of State for Scotland were not in any sense logical. He cited the cairn on which the stones had been heaped over the years. The functions of the Secretary of State, he said, had been added to and did not represent a logical bundle. But he must accept that these functions were added to in every case for a reason. In each case someone in this Parliament thought that a function was better handled in Scotland by Scottish civil servants on a Scottish basis than by a United Kingdom Government. We must be told why these arguments do not equally apply to the devolution of that power to a Scottish Assembly.

If it were sensible to devolve administratively it would be sensible, all other things being equal, to devolve politically and administratively to the Assembly. When I asked my hon. Friend to say why certain functions were sensibly devolved to the Secretary of State or the Scottish Office, but would not be sensibly devolved to the Assembly, he did what I had expected him to do. He produced two sets of reasons. One concerned the question of external implications through the EEC. The hon. Member for North Angus and Mearns (Mr. Buchanan-Smith), who had experience of EEC negotiations and was a Minister in charge of agriculture and fisheries, dealt with that point admirably.

In the EEC there are two possibilities. First, the administration could act as an agency for regulations from Brussels, and in that case there is no reason why devolution should not apply. Secondly there is the question of policy issues arising. Where a policy issue arises, as with fisheries, why is it that fishermen say that on the whole they would prefer fisheries to be devolved? Why did they put that point to me when I had to slip out during the debate? It was because they believe that a Scottish Assembly, with a Scottish Fisheries Minister, could put a strong case to the United Kingdom Government, which would then put that case in Brussels. They thought that this would be a better and stronger method of putting the case of the Scottish inshore fishermen than directly by means of a United Kingdom message, because there are many local considerations to be taken into account. The German Lander put their case in Brussels in the same sort of way through a single German Minister of Agriculture. I therefore want to establish that the fact that something is subject to Brussels regulations does not render it unsuitable for devolution.

The Minister of State will recognise that the margin of what is open to EEC regulation is not a close one. If being part of the EEC means that we cannot let a subordinate Assembly be involved with a regulation, because it is something coming from Brussels and therefore only the Foreign Office is involved, I point out that the margin is constantly shifting, because the EEC regulations and directives will be increasing, and applying to increasing areas.

Mr. Budgen

Will the hon. Gentleman agree that that is why an element of confusion is necessary, so that against that confusion we have the hard and increasing restriction of Clause 62?

Mr. Mackintosh

It is a question not of confusion being necessary but of scope for the devolved Administration. That was one of the reasons that the Minister of State gave, and I do not think that it holds. His other reason disturbed me considerably, when he turned to economic powers. Economic powers have been accrued by the Secretary of State for Scotland as a result of pressure from the Scottish population. The pressure of Scottish political events has forced the Secretary of State to accept many economic powers.

When I first came to this House, the Secretary of State for Scotland had no economic powers. There were United Kingdom powers held by the Minister for Industry. It was the fact that the Secretary of State was the spokesman for Scotland which led to these economic powers being handed on to him one by one.

The case I have been making has been that if these are Scottish issues, on which the Scottish electorate expect the people they choose to represent them to be responsible, they will expect whoever is running the Scottish Assembly to have this kind of responsibility. They will not allow a Scottish Chief Secretary—or Prime Minister, as they will call him—to say "I am awfully sorry, but this has nothing to do with me. This is a power which is in the hands of the chap down the corridor, the Secretary of State for Scotland." If the Chief Executive has any political standing in Scotland, all these matters will be laid at his door, just as they were laid at the door of the Secretary of State.

The Minister of State said that these matters must be kept for the Secretary of State for Scotland. As an example, he said how useful it was in his own case, as a constituency Member of Parliament, to have matters which might be United Kingdom matters dealt with locally quite quickly by Scottish civil servants. With deep respect to the Minister of State, I felt that on this occasion he was slightly confusing matters. There will be no problem, after the passing of this Bill, of a United Kingdom Minister for Industry having. Scottish civil servants to settle Scottish problems on the spot. There are Scottish civil servants in the Ministry of Pensions, for example, who study pensions cases on the spot. We are not talking about a devolved group of people but about devolved power to make decisions for which people are politically responsible.

7.45 p.m.

The Minister of State is envisaging a situation in which Mr. X, Prime Minister of Scotland, head of the Scottish Assembly, is being held responsible for the general health of Scotland. He may be a Conservative or a Labour person. There is a second person, the Secretary of State, who has the power over devolved economic matters, and who will be of generally less importance, because he has a lesser administrative rôle. He may be of a different political party. This is fundamentally a recipe for conflict and disaster.

Mr. John Smith

I think that my hon. Friend is making too much of that matter. As to the point concerning industry, when something became a matter for the Minister, although it was dealt with by a civil servant in the Department of Industry located in Glasgow, it would go to a London-based Minister rather than to a Minister based in Scotland. Ministers take decisions from time to time as well as civil servants.

Mr. Mackintosh

I accept that, but if it is a local policy decision to be taken by a local Minister, the expectation will be that this will be by a Minister responsible to the Assembly. Presumably we shall not have, in the truncated office of the Secretary of State, five junior Ministers under him. If it is his responsibility, and not that of a Minister responsible to the Assembly, clashes and difficulties will arise. I am sorry that the Minister of State thought that I was using exaggerated language, but I repeat that there will be great difficulty arising if the head of the Scottish Assembly is to say "I am sorry, but economic affairs are none of my business in Scotland".

It was precisely the inability to deal with such matters that forced Government after Government to increase the economic powers of the Secretary of State. When I first came to this House, the Secretary of State had an economic adviser but no economic planning department. All these powers were in the hands of the United Kingdom Minister for Industry. As my right hon. Friend the Member for Kilmarnock (Mr. Ross) has said time and again, it was precisely because he was in some sense Scotland's Minister, and expected to be Scotland's Minister in circumstances of this sort, that these powers had to be given to him.

If the person who is head of the Scottish Executive is to have any political meaning, he will be regarded as Scotland's Minister, and it will be very difficult, particularly if he is of a different political party, for him to say "I am sorry, but on this point it is that man who controls half the old Department of Agriculture and a bit of the old Department of Economics who has to handle this matter. You have to turn to him, because he is part of the United Kingdom Cabinet."

I am arguing here not for federation but for clear-cut devolution. I am arguing for a devolution which will minimise conflict and trouble, and in which the expectations of the electorate can be fulfilled. It would be very unsatisfactory if we were to spend the next 15 years amending the Act bit by bit. I want to see a settlement which is generous and which can then be held, and which will be a resting place for Scottish politics.

In the helpful reply made by my hon. Friend the Minister of State he tried to suggest that there were only two possibilities, either confusion, or clarity of the kind that he believes he has produced in the allocation of functions. He also said, in a sotto voce aside, that one could not be both generous and clear. I do not accept this.

Mr. John Smith


Mr. Mackintosh

I do not think that it is a question of confusion or clarity. The real issue is one of scope or limitation.

Mr. John Smith

I am sorry that my hon. Friend has misinterpreted me. He said on one occasion that he wanted the Bill to be both generous and clear-cut. My observation is that generosity does not necessarily lead one to be clear-cut. He has an argument also about wider scope for devolution, with which I happen to disagree. But I say that instead of there being vague powers, they ought to be precisely defined. Surely it is possible to be both generous and precise.

Mr. Mackintosh

That is my point, and I am grateful to the Minister of State. I believe that one can be both generous and precise. One can give clear-cut powers over the whole field of education. In my original speech I referred to the tremendously difficult position of the colleges of agriculture, where education is devolved but where the agricultural work is not devolved. We have the same sort of problem with the poor fish. When it is in the sea, it is a national fish. When it is in the mouth of a river, it becomes a devolved fish. This sort of arrangement does not make for clarity. It would be much easier if the existing powers concerning education, health and housing of the Scottish Office were to be devolved. It may be true that some of these powers ought never to have been devolved for Scotland. If that is so, they should be taken back to Whitehall. The argument is aimed not at centralisation, but seeks to emphasise that in attempting to start off devolution successfully Governments possibly have devolved too much from time to time. There is not a case for a rump Secretary of State sitting in Edinburgh with quasi powers.

The hon. Member for Eastleigh (Mr. Price) spoke of the Secretary of State's role. He agreed with the logic of the argument but said that the Secretary of State would act as a go-between. I disagree with him, and I ask him to contemplate the possibility that if the Scottish Assembly has real power—and it is bound to have some political power because it will be directly elected—the people concerned will say that they represent Scotland, as they will, and will express themselves dissatisfied with the lack of finance. Will they be prepared to turn to a junior Minister—because that is what he will be, and possibly a Minister of another political complexion—and ask him to trot down to London to obtain more money? They will do no such thing.

Any hon. Member with political nous and experience well knows that if we were part of a Scottish Assembly we would be rushing to appear on television and would make a row about such an issue, saying "We are being starved of finance and wish to see the Prime Minister". We would certainly not turn to a subordinate Secretary of State who would be No. 24 or No. 25 in the Cabinet. I cannot think who the No. 25 man would be. Perhaps it would be the Secretary of State for Wales. However, I do not wish to be offensive to any of my colleagues. I repeat that we would not turn to such a man and tell him to run this little errand. It would have to be done by those running the Assembly.

Mr. Dalyell

Surely the Secretary of State or the Permanent Secretary involved would be loyal to the Home Civil Service. If that is not the case, what will it mean in terms of the break-up of the home Civil Service and loyalty to the Assembly?

Mr. Mackintosh

My hon. Friend raises a most important matter. Of course, such persons will have to be loyal to the Assembly and to their masters. There may be interchangeability. I know that many hon. Members dislike the example of the Stormont Government, but it must be said that administratively that system worked reasonably well for 50 years. There was common recruitment, common pay and a common Civil Service Commission, but one that was attached to the Civil Service in Northern Ireland. The responsibility was towards the Ministers in Northern Ireland. If my hon. Friend is right, the only difficulty that will arise is that there will be two separate offices, one responsible to London and one to Edinburgh.

For these reasons the proposals in this amendment make for a lack of conflict, clarity and ease of working. The object is not to go further than the Bill goes. It is not intended to make a federal system work, but to make the existing devolution proposals work more satisfactorily. I believe that if federalism ever came about in the United Kingdom—and I should be surprised it it did—it would come about in only one way. That would be if the Scottish devolved system worked so well that people in the North of England took the view "They have got what they want. We want more and we want it for ourselves". If on the other hand it proves to be a bad government, corrupt, costly and a mistake, they will take another view.

I hope that hon. Members will appreciate that this amendment is designed to obtain clarity, to minimise conflict and to produce a workable scheme. It is in the tradition of devolution in Northern Ireland administratively and it has worked in that respect. However, as no other devolution I have ever seen is as obscure and as complicated as that set out in the Bill, I hope that the Committee will support the amendment.

Question accordingly negatived.

Clause 61 ordered to stand part of the Bill.

Question put, That the amendment be made:

The Committee divided: Ayes 35, Noes, 133.

Division No. 59] AYES [7.55 p.m.
Bain, Mrs Margaret Jessel, Toby Steel, Rt Hon David
Beith, A. J. Johnston, Russell (Inverness) Stewart, Rt Hon Donald
Craig, Rt Hon W. (Belfast E) Knox, David Thomas, Dafydd (Merioneth)
Crawford, Douglas McCartney, Hugh Thompson, George
Ewing, Mrs Winifred (Moray) MacCormick, Iain Thorpe, Rt Hon Jeremy (N Devon)
Fairgrieve, Russell Macfariane, Neil Wainwright, Richard (Colne V)
Freud, Clement Onslow, Cranley Watt, Hamish
Gilmour, Sir John (East Fife) Pardoe, John Wigley, Dafydd
Glyn, Dr Alan Penhaligon, David Wilson, Gordon (Dundee E)
Grimond, Rt Hon J. Reid, George
Henderson, Douglas Renton, Tim (Mid-Sussex) TELLERS FOR THE AYES:
Hooson, Emlyn Rifkind, Malcolm Mr. John P. Mackintosh and
Howells, Geraint (Cardigan) Ross, Stephen (Isle of Wight) Mr. Alick Buchanan-Smith.
Armstrong, Ernest Golding, John Orme, Rt Hon Stanley
Ashton, Joe Gourlay, Harry Palmer, Arthur
Atkins, Ronald (Preston N) Grant, George (Morpeth) Park, George
Bagier, Gordon A. T. Grant, John (Islington C) Parker, John
Barnett, Guy (Greenwich) Hamilton, James (Bothwell) Perry, Ernest
Bates, Alf Harrison, Rt Hon Walter Radice, Giles
Bennett, Andrew (Stockport N) Hooley, Frank Richardson, Miss Jo
Blenkinsop, Arthur Hughes, Robert (Aberdeen N) Robinson, Geoffrey
Boardman, H. Hunter, Adam Roderick, Caerwyn
Booth, Rt Hon Albert Irving, Charles (Cheltenham) Ross, Rt Hon W.(Kilmarnock)
Bray, Dr Jeremy Jackson, Colin (Brighouse) Sever, John
Brown, Hugh D. (Provan) Jackson, Miss Margaret (Lincoln) Silverman, Julius
Buchanan, Richard Jay, Rt Hon Douglas Skinner, Dennis
Callaghan, Jim (Middleton & P) Jenkins, Hugh (Putney) Small, William
Campbell, Ian John, Brynmor Smith, John (N Lanarkshire)
Cant, R. B. Johnson, James (Hull West) Snape, Peter
Carter-Jones, Lewis Johnson, Walter (Derby S) Spearing, Nigel
Clemitson, Ivor Jones, Alec (Rhondda) Spriggs, Leslie
Cocks, Rt Hon Michael (Bristol S) Jones, Barry (East Flint) Stallard, A. W.
Coleman, Donald Jones, Dan (Burnley) Stewart, Rt Hon M. (Fulham)
Cook, Robin F. (Edin C) Kerr, Russell Strang, Gavin
Corbett, Robin Lamond, James Taylor, Mrs Ann (Bolton W)
Crawshaw, Richard Lewis, Arthur (Newham N) Thomas, Ron (Bristol NW)
Dalyell, Tam Litterick, Tom Thorne, Stan (Preston South)
Davidson, Arthur Loyden, Eddie Tinn, James
Davis, Clinton (Hackney C) Mabon, Rt Hon Dr J. Dickson Wainwright, Edwin (Dearne V)
Dean, Joseph (Leeds West) McCartney, Hugh Walker, Harold (Doncaster)
Dempsey, James McDonald, Dr Oonagh Walker, Terry (Kingswood)
Doig, Peter McElhone, Frank Watkinson, John
Dormand, J. D. McGuire, Michael (Ince) Weetch, Ken
Dunnett, Jack MacKenzie, Rt Hon Gregor White, Frank R. (Bury)
Eadie, Alex Maclennan, Robert White, James (Pollok)
Edge, Geoff McMillan, Tom (Glasgow C) Whitehead, Phillip
Ellis, John (Brigg & Scun) McNamara, Kevin Whitlock, William
Ewing, Harry (Stirling) Madden, Max Williams, Alan Lee (Hornch'ch)
Fernyhough, Rt Hon E. Marks, Kenneth Wilson, Alexander (Hamilton)
Flannery, Martin Marshall, Dr Edmund (Goole) Wilson, William (Coventry SE)
Fletcher, Ted (Darlington) Maynard, Miss Joan Wise, Mrs Audrey
Fookes, Miss Janet Millan, Rt Hon Bruce Woodall, Alec
Foot, Rt Hon Michael Molloy, William Woof, Robert
Ford, Ben Morris, Rt Hon Charles R. Young, David (Bolton E)
Forrester, John Morris, Rt Hon J. (Aberavon)
Fowler, Gerald (The Wrekin) Murray, Rt Hon Ronald King TELLERS FOR THE NOES:
Garrett, W. E. (Wallsend) Newens, Stanley Mr. Jim Marshall and
George, Bruce Noble, Mike Mr. Thomas Cox.
Ginsburg, David Ogden, Eric
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