HC Deb 06 July 1978 vol 953 cc783-815

Lords amendment: No. 41.

divide Clause 20 into two Clauses, the first consisting of subsections (1) and (2) and (4) to (10) and the second consisting of subsection (11).

Read a Second time.

Mr. John Smith

I beg to move, as an amendment to the Lords amendment, to leave out 'subsection (11)' and insert 'subsections (3) and (11)'.

Mr. Deputy Speaker

With this amendment to amendment no. 41 we may also take Lords amendments nos. 42 and 46.

Mr. John Smith

Clause 20 originally consisted of subsections (1) to (11) and Lords amendment no. 249 in the Lords Committee divided into two clauses, the second consisting of subsections (3) and (11). On Third Reading, an amendment—no. 42—omitted the first subsection from the second of the two clauses which resulted from dividing clause 20.

As the Bill left the other place, the second clause no longer comprised two subsections. Accordingly, the amendment to divide clause 20—no. 41—was adjusted to refer to subsection (11) of clause 20 rather than subsections (3) and (11), subsection (3) being no longer in the Bill. It is now necessary to reinsert the reference to subsection (3).

Turning to Lords amendment no. 42, its effect relates to the prerogative. It is a detailed subject, and perhaps I can put it as briefly as I can to the House.

In our submission, the amendments which another place has made effect a major change in the structure of the Bill. The consequence would be a substantial loss of executive power as the Bill would devolve it—a loss perhaps unintended by the mover of the amendment in another place. The noble Lord who move the amendment in another place suggested a method of making the loss good, but we believe that that method is undesirable.

The Bill as it left the Commons devolved Her Majesty's prerogative and other executive powers exercisable by Ministers as these related to devolved matters in Scotland. There are very few genuine instances of prerogative power in the areas of domestic policy which are the main components of devolved matters.

In response to the debate in Committee in another place, the Government indicated their readiness to take a Report stage amendment deleting the explicit reference to prerogative powers. The concept of executive power would in any event include those executive powers which derive from the prerogative. However, on Third Reading in another place the Opposition went further by proposing the devolution not of executive powers but of statutory powers only. The position finally arrived at in the Bill as it stands is we believe constitutionally impure because the prerogative is not capable of being devolved by statute.

Perhaps I might paraphrase the argument in another place. The prerogative is the residue of the absolute power of the mediaeval monarch. It has been progressively controlled and restricted by the common law. The principal weapon of the common law is the doctrine that, wherever prerogative power is converted or subsumed into statutory power, it is to that extent put into abeyance.

The Bill purports to dispose of prerogative powers in relation to devolved matters in Scotland and it is said that in so doing it automatically converts those powers into statute. We believe that this view rests on a misconception. Certainly it is true that when statute subsumes any part of the prerogative, that part ceases to be exercisable. But the Bill does not subsume. It simply specifies who is to exercise the prerogative in relation to certain matters. The substantive content of the prerogative is left untouched.

The view advanced in another place involves what the irreverent have called the Midas theory—when Parliament touches the prerogative, it turns from prerogative into statute. However, this ignores the distinction between subsuming and transferring and ignores the sovereignty of Parliament and its capacity to displace the common law. Parliament's obvious intention would be frustrated if the Midas theory operated. It also ignores the fact that ministerial powers, prerogative and other, are regularly transferred by transfer of functions orders under the Minister of the Crown Act 1975 and its ancestor. No one has ever suggested that prerogative powers are incapable of surviving the transfer.

There is another basic point of misunderstanding. It has been suggested that all ministerial powers derive from statute or from the prerogative. This ignores the general executive capacity which Ministers possess—a capacity which is nothing to do with the prerogative, but which derives from the Crown's right to do anything which a private individual can do. It is in no sense a substitute for legislation and it imports no power to spend money, but it does cover the multitude of ministerial executive acts which take place every day. It is relied on for giving advice to the public, for setting up advisory bodies, for encouraging pilot schemes in advance of legislation, and for managing whole areas of activity such as sport and the arts. If Scottish Secretaries were cut back to statutory powers, they would suffer a loss of capacity.

The remedy proposed was that Her Majesty, using any of the variety of formal instruments available to her, should devolve prerogative powers as and when occasion may demand. This is a breathtaking piece of academism. It contemplates that a Scottish Secretary, when wanting to act outside the range of specific statutory powers, would first have to ask the Secretary of State to ask the Palace to prepare and issue an instrument conferring on the Scottish Secretary so much of the prerogative as was needed.

But what is wanted for Scottish Secretaries is not bits of the prerogative, which have no real relevance to devolved matters, but the general executive capacity. What is more, the suggestion would open the door to a most implausible and unwelcome form of devolution, namely, creeping devolution by Royal dictate. This may overcome the constitutional doubts of the Opposition in another place as to the prerogative, but it is remarkable that it has not occurred to them how much criticism there would be of creeping devolution taking place outside the Bill.

Mr. Timothy Raison (Aylesbury)

In the Wales Bill there is no general transfer of the total executive or prerogative power. It is transferred only in relation to matters specifically set out in the statute. Would that be impossible in this Bill?

Mr. Smith

The difference between the two Bills is that there are no legislative powers in the Wales Bill. The matter is dealt with in clause 26 of the Wales Bill, which provides supplementary powers.

We believe that the amendments would not help the structure of the Bill and would include a diminution of the powers that are intended to be devolved to Scottish Secretaries. We believe that the amendments are undesirable.

Mr. Brittan

The right hon. Gentleman has been equipped with an interesting piece of constitutional doctrine, but whether it will survive the scrutiny of the House is another matter. It seems that behind the bland words there are real problems.

The problem which arises and has led to this apparently arcane discussion on constitutional niceties is the unique feature of the arrangements proposed in the Bill—namely, that the powers of prerogative are exercisable by those who do not have access to the Crown. That is the fundamental feature of the whole arrangement.

It is curious that although the issue was raised on exactly those terms in the debates in another place, the Minister, while equipped with a marvellous brief dealing with the constitutional niceties, has studiously avoided addressing himself to the problem. The difficulties in which the Government find themselves and their need to table an amendment to the Bill in lieu of the Lords amendment derive from the fact that a scheme of devolution is included in which powers are exercised—prerogative powers at that—by those who do not have access to the Crown. That is what is so strange.

The Government were at pains in another place to say that they did not want any sort of governor-general arrangement whereby access to the Crown will be conferred on a particular figure and a means will be achieved to secure the more normal sort of access to the Crown. Instead of that, we have the conferment of prerogative powers by clause 23.

The Government say that the Midas theory is to be denounced and is a lot of rubbish and that the mere fact that the prerogative powers is mentioned in a statute does not mean that the power is pared down in any way or confined to the limits of the statute. That theory is thrown out. Yet, for all that, the Government propose an amendment deleting the words "prerogative and other". If the Government's amendment is accepted, we are left with the following: Such of Her Majesty's executive powers as would otherwise be exercisable on behalf of Her Majesty by a Minister of the Crown shall, if they relate to devolved matters and are exercisable in or as regards Scotland, be exercisable on behalf of Her Majesty by a Scottish Secretary. What has happened to the prerogative powers that the Government originally thought should be exercised on behalf of Her Majesty in Scotland by a Scottish Secretary? Are the Government proposing in technical language that the actual powers of the Scottish Secretary should be less than envisaged in the original Bill? Is that what is proposed when previously the idea was that he should have the prerogative powers? If that is so, the Government are proposing a substantial diminution of the power of the Scottish Secretary. What is it that has persuaded them to come to that conclusion? We have not had an explanation of that. Nor have we had a satisfactory explanation of the difference between prerogative and other executive powers". The distinction that the Minister sought to make is unsupported by any authority. He has given an ex cathedra pronouncement that the executive power—

Mr. John Smith

I do not have a cathedra.

Mr. Brittan

I am sorry that the right hon. Gentleman objects. Surely he has a cathedra to be exed. It is called the Privy Council Office, and a pretty good cathedra it is too. Be that as it may, whether it is ex cathedra or in cathedra it is purported to be authoritative. However, the right hon. Gentleman has no authority for it other than his say-so.

I am always ready to learn, but I have not learnt yet by what constitutional authority we are told that the executive power is different from the prerogative power and that it is the right of Ministers to do something that any private individual may do. In other words, it is not that the Minister has powers that ordinary individuals have but has the right to do things that ordinary individuals may do. That does not solve the problem.

Ministers are not ordinary individuals. They are either the creatures of statute or in some sense people who exercise the prerogative. Therefore, the mere fact that they are not doing something which private individuals are not able to do does not in my view, subject to any authoritative correction, mean that they are not exercising the prerogative power. I am much comforted by a nod from a much wiser head than mine—my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton).

9.45 p.m.

Mr. Raison

I am not sure whether a layman's view will be of much comfort to someone like my hon. and learned Friend. But I refer him to another cathedra, Dicey, who said: Every act which the Executive Government can lawfully do without the authority of the Act of Paliament is done by virtue of the prerogative.

Mr. Brittan

Whether I take comfort from my hon. Friend direct or from the even more authoritative source of Dicey seems to me to be something from which I can take comfort.

The fact is that the distinction drawn by the Minister between the prerogative and the executive seems to be unsupported. It is not supported by Dicey. Therefore, by removing "prerogative" and leaving "executive powers", I suggest that the Government are on very dangerous ground. If the matter is challenged in the courts, it might be found that on that language the precise ambiance of the powers of a Scottish Secretary, in so far as they are not derived from statute, is very uncertain.

Therefore, although the Minister pooh-poohs that on the one hand and on the other hand decries as being medieval mumbo-jumbo the other methods suggested in another place for the conferring of the prerogative power, it may be that, by confining a Scottish Secretary to the executive power, the right hon. Gentleman will achieve by a back door the same result as the House of Lords wished to achieve by the front door. He may find that if a Scottish Secretary is safely to have these powers, it is necessary that they be conferred on an ad hoc basis by Orders in Council, Royal instructions, proclamations or letters patent, as the case may be, which were the methods suggested in another place for conferring the prerogative powers.

Mr. Dalyell


Mr. Brittan

If I may finish one more sentence, I shall then give way to the hon. Member for West Lothian (Mr. Dalyell). To present it in some way as if it is a question of going to the palace and therefore involving the monarchy directly seems to be doing less than justice to the right hon. Gentleman's knowledge of the constitution. As he knows, an Order in Council is not dreamt up in the palace; it is issued on the advice of Ministers just as much as any other kind of instrument conferring such powers as these.

Mr. Dalyell


Mr. Brittan

I should like to make one further point, and then I shall indeed give way to the hon. Gentleman. If I undertake to do so, I shall abide by that undertaking.

Indeed, an alternative approach was suggested in another place—namely, under section 61 of the Australia Act. I shall not go into that now, but it was referred to in another place.

It seems that the right hon. Gentleman, by proposing this amendment, has not solved the problem. If anything, he has made it worse. The problem is caused by the structure of the Bill. It certainly is not solved by the language of the Bill or by the amendment. I am not suggesting that the Lords amendment provides a happy answer, because within the structure of prerogative powers conferred on people who do not have access to the Crown I am not sure that the problem is capable of solution. However, I certainly prefer what their Lordships have done to what the right hon. Gentleman wants to do. I give way at this point to the hon. Member for West Lothian.

Mr. Dalyell

The hon. and learned Gentleman referred to challenge in the courts. How would one go about a challenge in the courts, and which courts in this instance?

Mr. Brittan

I understand that a Scottish Secretary would have to take some action to which an individual in Scotland objected. In taking that action he would be purporting to do so not by virtue of any statute but by virtue of what are described in the Bill—if the Government's amendment is carried—as other executive powers as would otherwise be exercisable on behalf of Her Majesty by a Minister of the Crown". The first question that would arise would be whether the individual who objected had standing to make such an objection. That would be determined by whether it affected him more than it affected the public at large. I think that those would be the considerations, but I do not say this with any confidence because it is difficult to do so without looking matters up.

We have asked where the matter would be raised. I think that it would be raised in the Court of Session. One assumes that this would be an act done in Scotland. Therefore, there would be some means whereby such an individual would have access to the Court of Session and would seek relief, claiming either to quash the action taken by the Scottish Secretary as being ulta vires or to have it declared ultra vires by the Court of Session and, subsequently on appeal, as being an act which is exercisable solely under clause 20(3) of the Scotland Bill. The court would have to decide whether that was so. That is the way in which I think the matter would come before the court.

We support the Lords amendment, although we support it uneasily. The Government are buying themselves trouble. I do not believe, if there is a conflict between an individual and the Scottish Secretary about whether the powers have been exercised properly, that the use of the words "executive powers", in the absence of the prerogative, gives clear guidance to the courts about what the Scottish Secretary might or might not do.

Perhaps I can be persuaded during the debate that my anxieties are unreal. So far, however, the Minister of State has not persuaded me, and I doubt whether he has persuaded many of my hon. Friends.

The House of Lords examined the matter on a number of occasions. In spite of all the Government's blandishments, at a late stage, Members of the House of Lords, including many who are better versed in these matters than I can pretend to be, passed their amendment. With great reluctance I would disagree with that amendment, but not on the basis of the arguments advanced by the Government.

Sir David Renton

I hope that I shall not be accused of unnecessarily taking up time if I begin by taking the first opportunity that I have had of congratulating the Minister of State on his admission to the Privy Council. It is a well deserved tribute to the work which he has done, often single handed, on these difficult devolution Bills.

Clause 20(3) is neither constitutionally sound nor necessary to the purpose of the Bill. I do not consider that leaving out the words "prerogative and other" substantially lessens the constitutional difficulty.

I remind the House that all sovereignty in this country originally derived from the Crown. As the Minister of State said in his ex cathedra statement—read rather faster than such statements should be read, because they should be read slowly and solemnly when they deal with such important matters—sovereignty is derived from the Crown. Originally it was a sovereignty in executive, legislative and even judicial matters.

Strangely enough, the first element in that sovereignty which the Crown voluntarily surrendered was before we ever had a Parliament, and it was in judicial matters. Indeed, the Plantagenet kings acknowledged that they should never again try to sit in judgment. The last king who wanted to do so was King James I of England—King James VI of Scotland—but he was talked out of it by the judges of the day, and I believe that he did not succeed in sitting judicially. That was an element of sovereignty which was surrendered but for the appointment of judges; to that extent, the Crown still retains a prerogative in judicial matters, but I think only to that extent. There is the prerogative of mercy, of course, which could also be said to relate to judicial matters, but is an executive act.

The legislative sovereignty which Parliament has is, as I say, derived from the Crown. It was surrendered by the Crown sometimes because Parliament took it a bit forcibly and at other times the Crown was persuaded to surrender it voluntarily, and that process still goes on. But when we come to executive matters, it was simply the exercise of the prerogative in that respect. If the right hon. Gentleman, by referring again to the words in the subsection, could tell us what is the difference between prerogative in executive matters and the exercise of the Crown's executive power, it would be very interesting to know the answer. I do not think that he can tell us the difference. I do not think that there is a difference. In the context to which he refers, in subsectian (3), it can only be the exercise of the prerogative in executive matters. That is really what we are talking about. Therefore, when he is left with the words: Such of Her Majesty's…executive powers as would otherwise be exercisable on behalf of Her Majesty by a Minister". he is really still referring, I submit, to the exercise of the prerogative. Either some of those words were otiose and unnecessary when they were first put in and made no difference at all, or the right hon. Gentleman must describe what the difference between "prerogative" and "executive" comes to in this context.

As my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) pointed out, we need to be very careful when we talk about transferring to somebody other than Her Majesty's Ministers the exercise of prerogative powers on her behalf, because that is what we are doing here. Parliament gives various kinds of powers to all kinds of people who are not Ministers. We give powers, for example, to the head of a nationalised industry, or to the controlling board of a nationalised industry, but we do so by specifying in the appropriate statute exactly what powers are being given by Parliament.

I should be glad to know of a precedent for any case in which within the United Kingdom we have adopted a formula of this kind, unless it be in a statute establishing the independence of a new country, and then we recognise that new sovereignty is being created. If the right hon. Gentleman knows of a precedent, I should be glad to give way, so that I might comment on it.

Mr. John Smith

Subsections (2) and (3) of section 7 of the Northern Ireland Constitution Act 1973 provided for Her Majesty to delegate prerogative or other executive powers". I am not saying that the circumstances are precisely identical, but the words were used in that statute.

10.0 p.m.

Sir D. Renton

The words were used, but in a different context from that in the Bill. In the case of Northern Ireland the exercise of those powers is a matter for which the Secretary of State for Northern Ireland has to answer to this House. In the case of the Bill, the Government have been saying all along that, although we are still to have a Secretary of State for Scotland—who will have many residual powers, as we were trying to point out in such time as we had in Committee—there are other powers which are devolved to the Scottish Executive and which can be exercised by a Scottish Secretary. Therefore, the example of Northern Ireland, quoted merely because the same words are used in a different context, is not a precedent upon which the right hon. Gentleman can ask the House to rely.

One could go on explaining the constitutional position that arises, but is the subsection really necessary for the Bill? I ask the House to consider the clause without subsection (3). Subsections (1) and (2) are unimpaired. If right hon. and hon. Members glance down the remaining subsections, they will find that the only further reference to subsection (3) is in subsection (11). On a different group of amendments we shall discuss subsection (11) as a separate issue, and I do not wish to take up time by anticipating that discussion, for which I hope we shall have time.

Admittedly, however, there is also a reference in subsection (9) to powers mentioned in subsection (3)", but we could perfectly well have the powers mentioned in subsection (9), which are powers to appoint such officers and servants as he —a Scottish Secretary— may think appropriate", without giving him the very wide powers, which are essentially prerogative powers as expressed, mentioned in subsection (3).

I agree that in order to make thoroughly the case that the Government do not need subsection (3) it would be necessary for me to refer to many other provisions of the Bill, and there is not time to do so. I merely ask the right hon. Gentleman to consider with his usual care whether he really needs that subsection, which in this context is unprecedented. Bearing in mind the good work that the Lords have done on this subsection and other parts of the Bill, I think that it would be as well to do without it and to accept the Lords amendment.

We are discussing an example of some of the excellent work done in another place. I am glad that the right hon. Gentleman nods his head in agreement. It is work which goes far beyond what we ordinarily understand by "revision". "Revision" is the revision of drafting, the improvement of detail, however important the detail may be. But what the Lords have done is to perform a valuable public service, especially to the people of Scotland, by giving this House the chance of reconsideration, of second thoughts. It not only gives us the chance but places upon us the duty to use that opportunity as wisely as we can. I hope that the Government will reconsider this matter.

Mr. Dalyell

In the temporary and fleeting absence of my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar), I can speak for the unanimous opinion of the Labour Back Benchers present, because it must be the unanimous opinion of the Labour Back Benchers present that on this matter the Lords did indeed, as with many other subjects, work extremely hard. I happened to hear their Lordships' debate. Having gone through all the days here in the House of Commons, I had not, once again, realised precisely what was involved until I heard the Lords debate. This is just yet another manhole, because the truth is that this is not an esoteric problem.

The Minister of State used the striking phrase "creeping devolution by Royal diktat". I hasten to assure him that, whatever my other shortcomings, I am not in favour of that. I am bound to say that we may get creeping devolution until everything that distinguishes creeping devolution from a separate State actually disappears. I think that this is a very important matter because it involves all sorts of subjects, not only sport and the arts but the setting up of all kinds of Royal Commissions of inquiry. This is in fact a very important part of Government.

Because of time reasons, I put my remarks in question form. Before I do so, I think it is fair to remark that among those who voted for the Lords amendments—though I think he voted on very few other matters in relation to the devolution Bill—was Lord Adeane, who, as Sir Michael Adeane, was the Queen's private secretary. I think that it is a bit significant that the Queen's former private secretary, who frankly has eschewed party matters over the years and, I think, intends to continue to do so, should on this matter feel it so worth his while to come and cast—

Mr. Speaker

Order. I wish to echo a word of caution that we never bring Her Majesty into our arguments in this place.

Mr. Dalyell

I ask, first of all, whether the amendments put forward create considerable doubt about the extent to which Scottish Secretaries could initiate new policies. Do they radically change the scheme of the Bill, which is based on the devolution of powers in relation to matters? That is central to the whole scheme of the Bill.

These are questions arising from assertions by the one noble Lord whom I gather I can quote. It was Lord McCluskey, as reported at column 938.

My second question is this. Is there any other statute or provision in any part of this country or the Commonwealth in respect of which the powers of the prerogative are exercisable by people who do not have access either to the Crown or in colonies or dominions to the governor or governor-general, who is the Crown's representative in those territories? Are Scottish Secretaries to have no direct access to the Crown, and are they therefore in a position to advise the Queen, and can they do so, if at all, at second hand?

If Parliament provides this, does it not help the courts to say that it is the extent of the provision that Parliament has made when it is done in this way, which is wholly unique in the history of our constitutional legislation? I put that in question form.

I also ask whether, in relation to the long example that was given in the other place concerning a tanker on its way to Rosyth, if it went aground in the Forth estuary—this is the long example with which the Minister of State is very familiar—these decisions on the prerogative would not in cases such as the tanker going aground in the Forth, lead to inordinate delay and difficulty in relation to litigation.

My hon. Friend the Under-Secretary of State for Scotland, the Member for Stirling, Falkirk and Grangemouth (Mr. Ewing), will realise that this is a practical example for our constituencies of what could happen. If, indeed, this example is misplaced, if decisions could be taken without delay by the Ministry of Defence and the Foreign Office in this kind of example, we should be told. The reply in the other place did not convince me that this was not an example of the kind of difficulty that could occur.

Time rolls on. There are others who wish to speak in the debate. I shall leave an otherwise longer speech at that.

Mr. Raison

The hon. Member for West Lothian (Mr. Dalyell) and I probably share a certain diffidence about entering into this rather technical debate, which so far has been dominated by the Minister and some hon. and learned Members. However, one or two further points ought to be made.

First, I echo what has been said about the thoroughness of the discussion on this matter in the other place. I confess that I was rather tickled to discover one debate there in which Lord Kirkhill, who replied on behalf of the Government, began his speech by ticking off some other noble Lords for speaking irrelevantly but then had to admit that he was answering the wrong amendment.

Mr. John Smith

Perhaps what was even more surprising was that the Opposition Front Bench did not even notice it.

Mr. Raison

The Minister is, as ever, diligent in his scrutiny.

Mr. Dalyell

I was present on that occasion. Is it not also a fact that it is only very able criminal lawyers who can cope with this Bill at all in either House?

Mr. Raison

I made the point to the Minister that I was in order referring to the speech of Lord Kirkhill because it was a ministerial speech, but the Minister was out of order in referring to the other speeches because they were not ministerial speeches.

However, I come to the point at issue. It seems to me that the Minister owes us an explanation of the reason for the Government's moving of an amendment to leave out "prerogative and other" My hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) made this point. Unless I misheard the Minister, it was a rather strange omission from his speech. After all, it shows that the Government apparently accept —although this is very uncertain—that there is some sort of distinction between prerogative and other powers. At any rate, the Government have recognised that there is a point on which their original thinking was wrong. We have not had an explanation from the Minister of why the Government have been prepared to make this concession. Whether it is simply a concession in order to get the thing through with a minimum of fuss or whether there has been some serious thinking on the part of the Government is something that the Minister ought to explain.

As I said earlier, we have the view of Dicey that every act which the Executive can lawfully do without the authority of the Act of Parliament is done by virtue of the prerogative. In other words, Dicey apparently did not allow that there could be any Executive act other than one done under the prerogative. Therefore, the House is entitled to some explanation of that.

The only other point I want to raise with the Minister is one that I do not think has been raised previously. Would the powers which the Government envisage as being devolved to the Scottish Secretary, a member of the Scottish Executive, still be, as it were, concurrently exercisable by the Secretary of State, or would those powers simply be handed over, implying a relinquishment of those powers on the part of the Secretary of State?

As the House may remember, one of the odd things about the legislative aspects of devolution is that although it is the Government's wish and intention that legislation on devolved matters should be confined to the Scottish Assembly, nevertheless I think it has been established quite clearly that the House of Commons will still have the power to legislate on anything under the sun. In other words, if the House of Commons wishes to legislate about education, housing, health or any other matter in Scotland, it is perfectly entitled to do so.

I give a more concrete example, perhaps, of how this might happen. If I were to win a place in the Ballot for Private Members' Bills and if I brought forward a Private Member's Bill saying, for example, that I wished to abolish corporal punishment throughout the United Kingdom, I could put in my Bill "This Bill applies to Scotland just as much as to England." As I see it, there would be nothing to stop me from doing so. There would be no power to prevent that.

However, in this debate we are talking not about legislation but about executive-type acts. What I am asking is whether the Government's proposal is that the executive powers are, as it were, to be exercised exclusively by the Scottish Secretary or whether they will still remain to be exercised concurrently by the Secretary of State. The answer to this must be that they will remain to be exercised concurrently by the Secretary of State.

It may be argued that I am being rather pernickety—I do not know. I dare say that the Minister will make the point. But let us take some examples—first, the question of corporal punishment—without commenting on the merits of the case.

10.15 p.m.

The Government of the United Kingdom could come under some kind of legal pressure from the European Court and could take it on board. I think it is true to say that, if the European Court or some other international obligation required us to abolish corporal punishment, it would have to be done; there would be no question about it. Before that happened, however, there could well be what one might call executive deliberations, considerations, or negotiations to be carried out. If they related to corporal punishment within Scotland, would they be can-led out by the Secretary of State on behalf of the United Kingdom Government, dealing with this other alien power, or would they be carried out by a member of the Scottish Executive? That is an example of the kind of area in which I should like to have a clear picture of what the Government have in mind.

But there are also areas where certain powers are devolved while others are not but which may be said nevertheless to constitute a totality. This is true of agriculture. Some of the powers over agriculture are to be devolved to the Assembly whereas other powers remain with the United Kingdom Government. Let us suppose that it was decided to set up a committee of inquiry. Such committees have been used on a number of occasions as examples of executive actions that are not, as it were, set up by statute but derive from the kind of executive power that we are talking about.

Would it be possible for the Minister of Agriculture or the Secretary of State for Scotland, or whoever else, in the central Government to set up a committee of inquiry into agriculture which would embrace both the developed aspects of agriculture and those which remained with the central Government? Clearly, it could be stupid in practice to make that kind of separation. Agriculture is, indeed, a good example of where the whole scheme is nonsensical.

I take another example—education. On the whole, education is to be devolved to Scotland—the schools, and so on—but the universities remain with the United Kingdom Government. I think that is sensible, and I am pleased that the universities are to remain with the United Kingdom Government.

But it might well be that someone concerned with the whole pattern of education, with the way in which we are responding to the requirements of industry, or the way in which the link between schools and the universities is operating, says "These are not matters which can be looked at in isolation. We must have an inquiry able to look at both schools and universities." It may well be, therefore, that the Secretary of State, on behalf of the Westminster Government, thinks it appropriate to have an inquiry into the matter. Would he have the power to do it, or is the whole business of dealing with schools in Scotland exclusively transferred to the Scottish Administration?

I do not know the answer to these points. I believe that these are the kinds of issue that will inescapably crop up if this absurd devolution scheme goes through. They are among the areas of friction that we have pointed out time and time again in these debates as being liable to occur, and at the very least we can ask the Minister of State for an explanation.

Mr. Powell

I should be grateful if the Minister of State would refer to three points of difference which may be illuminating between this clause and section 7 of the Northern Ireland Constitution Act 1973, to which he referred the right hon. and learned Member for Huntingdonshire (Sir D. Renton) as a partial precedent.

The three points are these. It appears that in the Bill the powers in question are exercisable by a Scottish Secretary—that is to say, they do not have to be exercised by a Scottish Secretary, so presumably they can be concurrently exercised or alternatively exercised by the Secretary of State—whereas in the corresponding, or not corresponding, section of the 1973 Act they have to be exercised through members of the Northern Ireland Executive.

The second point is that in the 1973 Act the powers are still retained, in effect, by the Secretary of State. He uses the Executive as an agency but the powers are exercised in law by the Secretary of State. The third point is that the powers in question are in that Act qualified "as such as are delegated to him by Her Majesty". This implies a further limitation other than that they must relate to transferred matters.

Obviously, all this is fairly novel constitutional ground, and inquisitiveness is naturally raised when we find substantial differences between the two devolution measures. In asking this question I do not mean to imply that I hope that the torpor into which the 1973 Northern Ireland Constitution Act has fallen, mesmerised by the 1974 Act, will ever be disturbed. I hope that it will not be. Nevertheless, from a constitutional point of view and as a means of throwing light upon what is here being discussed in respect of Scotland, its provisions are of interest.

Mr. John Smith

I thank the right hon. and learned Member for Huntingdonshire (Sir D. Renton) for his characteristically generous remarks about myself. I appreciate his kindness in thinking about me and the way in which he expressed himself. In addition to his courtesy and generosity, the right hon. and learned Gentleman has a capacity for asking some extremely penetrating questions. I shall do my best to answer them and the points which were touched upon by the hon. and learned Member for Cleveland and Whitby (Mr. Brittan).

Before turning to these matters, may I say that I agree with the comment made by the right hon. and learned Member about the way in which the other place dealt with some parts of the Bill. I cannot confer general approval upon everything that it did or all the priorities that it chose for examination. On certain aspects of the Bill, however, especially on the constitutional mechanisms and some of the legal parts of this measure, a very thorough examination was made, to the benefit of all concerned. The right hon. and learned Gentleman will forgive me if I say that it would have been quite possible for us in this House to have done the same task. The House of Lords, in its Committee stage, took one day less than we did and covered a great deal more territory than was covered here under the guillotine.

It is a fair point to make that the House of Lords managed to discuss some things which this House did not. The House well knows that our time in Committee was not taken up by supporters of the Government. It was mainly taken up by the Government's critics. We could very well have selected some of these matters for closer discussion.

Mr. Britton

The right hon. Gentleman repeatedly raises this canard, and it is time that it was laid.

Mr. Smith

It cannot be.

Mr. Britton

It can be laid. I am about to do it. Of course, the House of Lords considered matters that were not considered here. If we had spent our time considering those matters, we would not have considered the matters that we did and the House of Lords would have had to consider the matters that we had not dealt with. It is absurd to say that because, after exhaustive consideration in this House, the other place took slightly less time considering different matters, in some sense our time was wasted. That is an unworthy argument and it is time that it was put to rest.

Mr. Smith

If the hon. and learned Member thinks that that puts the matter to rest, he has too low a standard of self-satisfaction. The point is that if we look at how the House of Lords considered matters, especially during its Committee stage on the Bill, it will be seen that it covered many more matters in greater depth than was done here. It is regrettable that that should be so. The responsibility for that lies not with the Government but with the Opposition, whose job it is to criticise. What is more, the accusation was made that the guillotine which had been imposed was unnecessarily restrictive of debate and, therefore, the House could not possibly deal with the matter quickly.

Mr. Britton

Deal with the amendment.

Mr. Smith

The hon. and learned Gentleman has intervened, and one of the consequences of being in a free Parliament is that if an hon. Member intervenes to ask a question he has to listen to the answer. The hon. and learned Gentleman knows perfectly well that the House of Lords managed to cover many more things in detail than we did.

I come to the heart of the question raised by the right hon. and learned Member for Huntingdonshire. This concerned the distinction between prerogative powers, and executive powers, including executive powers of a prerogative character. I think that the right hon. and learned Member is quite right. It is extremely hard to draw a distinction between the two, and these were the considerations which led to the Government's abandoning the phrase "prerogative and other" in another place, as incorporated now in the amendment before the House for debate.

I think, therefore, that the right hon. and learned Gentleman hit the nub of the point in that respect. There are very few genuine instances of prerogative power in the area covered by devolved matters. But I think that the distinction which was eventually decided upon was too fine to be supported—that is, the distinction between the two matters which the right hon. and learned Gentleman raised—and the Government themselves, therefore proposed an amendment in another place.

I therefore take the implied criticism behind the right hon. and learned Gentleman's argument—namely, that perhaps we might do better if we had not had these words in the Bill in the first place. But that is what Parliament is for—to make criticisms—and it is for Ministers to reach decisions in the light of criticism. I think that, if only marginally, the Government might be given a little credit rather than criticism for having made that amendment.

The right hon. and learned Gentleman went on to argue, as did the hon. and learned Member for Cleveland and Whitby, I think, that we do not need subsection (3) at all. With great respect, differ from him fundamentally about that. In our view, there are a substantial number of powers of an executive character which Ministers have which it would be wise to give to Secretaries in the Scottish Administration. The important distinction here, as the right hon. Member for Down, South (Mr. Powell) correctly said, is that these powers are not exercisable by the Sovereign. They are powers which will be exercisable by the Scottish Secretary. This, if I may say so, is part of the answer to the question on access, which the hon. and learned Member for Cleveland and Whitby raised and to which he has previously referred.

With great respect to the hon. and learned Gentleman, I think that that is a red herring, because the Scottish Secretaries will be creatures of statute, and the statute will not confer rights of access. The fact that they have no rights of access, as we all agree they do not, does not prevent them from exercising power of a prerogative character. I think that the error lies in believing that the exercise of prerogative power involves the necessity of the Crown acting itself and having to be advised—on the advice, presumably, of a Scottish Secretary. That does not happen. The Crown does not exercise the power itself. The power is exercised by a Scottish Secretary. That is the other side of the argument on the question of access.

I quite accept that the concept of a general executive capacity, which is really the justification for having subsection (3) in the Bill at all, is fairly nebulous. It does not appear to have been one which was current in Dicey's day. The hon. Member for Aylesbury (Mr. Raison) rested heavily, I think, on an extract from Dicey's "Law of the Constitution". Nevertheless, we believe that it is firmly embedded in modern constitutional doctrine, and this is indicated by the practices of Governments of all shades of political opinion.

I believe that the detailed consideration which has been given to this matter, first in another place and then in this House as a result of the amendment brought before us for consideration, has been valuable. We thought that it was an important matter for the House to discuss, and we took steps in the arrangement of the timetable motion to do the best we could to ensure that it had discussion through the way in which matters were organised on the previous set of amendments. I hope that the House will accept that the subject has had a very good airing.

I see the hon. Member for Aylesbury indicating that he would like an answer to a point which he raised. I think that he is correct, and I think that the right hon. Member for Down, South is correct. I did not disagree with any of the points which he made. I confess that I have not made a close study of the Northern Ireland Constitution Act of 1973 and compared it with the provisions of the Bill, but, as the right hon. Gentleman spoke, I could not find any fault, from my limited knowledge of the matter, in the distinctions which he drew between the Bill and that Act. I think that the right hon. and learned Member for Huntingdonshire sought to make clear to him that I was not relying on it. He merely asked whether there was another example. I make no more of it save just to give the reference. The words were used in the other Act.

We have not time to go into a long analysis about that, but I think that the hon. Member for Aylesbury is correct in saying that the powers are exercisable by a Scottish Secretary. They are given to the Scottish Secretary. I suppose that it is technically possible that they could be exercised by—in fact, they are retained by—another Minister, in the same way as

this House retains a legislative capacity even over devolved matters, although I think that it is a little fanciful to think that the House of Commons will intervene in these matters.

On this amendment, as on every other, I think, my hon. Friend the Member for West Lothian (Mr. Dalyell) brought in his manhole problem—opening a manhole and finding even more horrific monsters underneath. It is interesting that he finds that on every conceivable occasion, and I feel that the answer must be that his general aversion to devolution is so great that, rather than—

It being half-past Ten o'clock, Mr. SPEAKER proceeded, pursuant to the Order [4th July], to put forthwith the Question already proposed from the Chair.

Question put, That the amendment to the Lords amendment be made:

The House divided: Ayes 272, Noes 258.

Division No. 251] AYES [10.30 p.m.
Allaun, Frank Corbett, Robin George, Bruce
Anderson, Donald Cowans, Harry Gilbert, Rt Hon Dr Johr
Archer, Rt Hon Peter Cox, Thomas (Tooting) Gould, Bryan
Armstrong, Ernest Craigen, Jim (Maryhill) Gourlay, Harry
Ashley, Jack Crawshaw, Richard Grant, John (Islington C)
Ashton, Joe Cronln, John Grimond, Rt Hon J.
Atkins, Ronald (Preston N) Crowther, Stan (Rotherham) Grocott, Bruce
Atkinson, Norman (H'gey Tott'ham) Cryer, Bob Hamilton, James (Bothwell)
Bagier, Gordon A. T. Cunningham, Dr J. (Whiteh) Hamilton, W. W. (Central Fife)
Bain, Mrs Margaret Davidson, Arthur Hardy, Peter
Barnett, Guy (Greenwich) Davies, Bryan (Enfield N) Harrison, Rt Hon Walter
Barnett, Rt Hon Joel (Heywood) Davies, Rt Hon Denzll Hart, Rt Hon Judith
Bean, R. E. Davies, Ifor (Gower) Hattersley, Rt Hon Roy
Benn, Rt Hon Anthony Wedgwood Davis, Clinton (Hackney C) Hayman, Mrs Helene
Bennett, Andrew (Stockport N) Deakins, Eric Healey, Rt Hon Denis
Bldwell, Sydney Dean, Joseph (Leeds West) Henderson, Douglas
Bishop, Rt Hon Edward Dell, Rt Hon Edmund Hooley, Frank
Blenkinsop, Arthur Dempsey, James Horam, John
Boardman, H. Dewar, Donald Howell, Rt Hon Denis {B ham, Sm H)
Booth, Rt Hon Albert Doig, Peter Hoyle, Doug (Nelson)
Boothroyd, Miss Betty Dormand, J. D. Huckfield, Les
Bottomtey, Rt Hon Arthur Douglas-Mann, Bruce Hughes, Rt Hon C. (Anglesey)
Boyden, James (Bish Auck) Dully, A. E. P. Hughes, Robert (Aberdeen N)
Bradley, Tom Dunn, James A. Hughes, Roy (Newport)
Bray, Dr Jeremy Dunnett, Jack Irvine, Rt Hon Sir A. (Edge Hill)
Brown, Hugh D. (provan) Eadie, Alex Irving, Rt Hon S. (Dartford)
Brown, Robert C. (Newcastle W) Edge, Geoff Jackson, Colin (Brighouse)
Buchan, Norman Ellis, John (Brlgg & Scun) Jackson, Miss Margaret (Lincoln)
Butler, Mrs Joyce (Wood Green) English, Michael Janner, Greville
Callaghan, Jim (Middleton & P) Evans, Gwynfor (Carmarthen) Jay, Rt Hon Douglas
Campbell, Ian Evans, John (Newton) Jeger, Mrs Lena
Caravan, Dennis Ewing, Harry (Stirling) Jenkins, Hugh (Putney)
Cant, R. B. Ewing, Mrs Winifred (Moray) John, Brynmor
Carmlchael, Nell Faulds, Andrew Johnson, James (Hull West)
Carter, Ray Fernyhough, Rt Hon E. Johnson, Walter (Derby S)
Carter-Jones, Lewis Flannery, Martin Johnston, Russell (Inverness)
Cartwright, John Fletcher, Ted (Darlingion) Jones, Alec (Rhondda)
Castle, Rt Hon Barbara Foot, Rt Hor Michael Jones, Dan (Burnley)
Clemitson, Ivor Fonoster, John Judd, Frank
Cocks, Rt Hon Michael (Bristol S) Fowler, Gerald (The Wrekin) Kaufman, Rt Hon Gerald
Cohen, Stanley Fraser, John (Lambeth, N'w'd) Kerr, Russell
Coleman, Donald Freeson, Rt Hon Reginald Kilfedder, James
Conlan, Bernard Garrett, John (Norwich S) Kilroy-Silk, Robert
Cook, Robin F. (Edin C) Garrett, W. E. (Wallsend) Lambie, David
Lamborn, Harry Palmer, Arthur Swain, Thomas
Lamond, James Park, George Taylor, Mrs Ann (Bolton W)
Lewis, Ron (Carlisle) Parker, John Thomas, Dafydd (Merioneth)
Litterick, Tom Parry, Robert Thomas, Jeffrey (Abertillery)
Loyden, Eddie Pavitt, Laurie Thomas, Mike (Newcastle E)
Luard, Evan Pendry, Tom Thomas, Ron (Bristol NW)
Lyon, Alexander (York) Penhaligon, David Thompson, George
Lyons, Edward (Bradford W) Perry, Ernest Thorpe, Rt Hon Jeremy (N Devon)
Mabon, Rt Hon Dr J. Dickson Price, C. (Lewisham W) Tierney, Sydney
McCartney, Hugh Price, William (Rugby) Tiley, John
MacCormick, Iain Radlce, Giles Tinn, James
McDonald, Dr Oonagh Rees, Rt Hon Merlyn (Leeds S) Tomlinson, John
McElhone, Frank Reid, George Tomney, Frank
MacFarouhar. Roderick Richardson, Miss Jo Torney, Tom
MacKenzie, Rt Hon Gregor Roberts, Gwilym (Cannock) Urwln, T. W.
Maclennan, Robert Robertson, George (Hamilton) Varley, Rt Hon Eric G.
McMillan, Tom (Glasgow C) Robinson, Geoffrey Wainwright, Edwin (Dearne V)
McNamara, Kevin Roderick, Caerwyn Walker, Harold (Doncaster)
Madden, Max Rodgers, George (Chorley) Walker, Terry (Kingswood)
Magee, Bryan Rodgers, Rt Hon William (Stockton) Ward, Michael
Mahon, Simon Rooker, J. W. Watkins, David
Mallalieu, J. P. W. Roper, John Watkinson, John
Marks, Kenneth Rose, Paul B. Watt, Hamish
Marshall, Dr. Edmund (Goole) Rowlands, Ted Weetch, Ken
Marshall, Jim (Leicester S) Ryman, John Weitzman, David
Mason, Rt Hon Roy Sandelson, Neville Wellbeloved, James
Maynard, Miss Joan Sedgemore, Brian Weish, Andrew
Meacher, Michael Sever, John White, Frank R. (Bury)
Mellish, Rt Hon Robert Shaw, Arnold (ilford South) White, James (Pollok)
Mikardo, Ian Sheldon, Rt Hon Robert Whitehead, Phillip
Millan, Rt Hon Bruce Short, Mrs Renée (Wolv NE) Whitlock, William
Miller, Dr M. S. (E Kilbride) Silkin, Rt Hon John (Deptford) Wigley, Dafydd
Mitchell, Austin (Grimsby) Silkln, Rt Hon S. C. (Dulwich) Willey, Rt Hon Frederick
Molloy, William Silverman, Julius Williams, Rt Hon Alan (Swansea W)
Moonman, Eric Skinner, Dennis Williams, Alan Lee (Hornch'ch)
Morris, Alfred (Wytbenshawe) Smith, Rt. Hon. John (N Lanarkshire) Williams, Rt Hon Shirley (Hertford)
Morris, Rt Hon Charles R. Snape, Peter Wilson, Gordon (Dundee E)
Moyle, Rt. Hon. Roland Spearing, Nigel Wilson, Rt Hon Sir Harold (Huyton)
Mulley, Rt Hon Frederick Spriggs, Leslie Wilson, William (Coventry SE)
Murray, Rt Hon Ronald King Stallard, A. W. Wise, Mrs Audrey
Newens, Stanley Steel, Rt Hon David Woodall, Alec
Noble, Mike Stewart, Rt Hon Donald Woof, Robert
Oakes, Gordon Stewart, Rt Hon M. (Fulham) Wrigglesworth, Ian
Ogden, Eric Stoddart, David Young, David (Bolton E)
O'Halloran, Michael Stott, Roger
Orbach, Maurice Strang, Gavin TELLERS FOR THE AYES:
Orme, Rt Hon Stanley Strauss, Rt Hon G. R. Mr. Alf Bates and
Ovenden, John Summerskill, Hon Dr Shirley Mr. Ted Graham.
Aitken, Jonathan Burden, F. A. Fletcher, Alex (Edinburgh N)
Alison, Michael Butler, Adam (Bosworth) Fookes. Miss Janet
Arnold, Tom Carlisle, Mark Forman, Nigel
Atkins, Rt Hon H. (Speithorne) Chalker, Mrs Lynda Fowler, Norman (Sutton C'f'd)
Atkinson, David (B'mouth, East) Channon, Paul Fox, Marcus
Awdry, Daniel Churchill, W. S. Fraser, Rt Hon H. (Stafford & St)
Baker, Kenneth Clark, Alan (Plymouth, Sutton) Fry, Peter
Banks, Robert Clark, William (Croydon S) Galbralth, Hon T. G. D.
Bell, Ronald Clarke, Kenneth (Rushcliffe) Gardiner, George (Reigate)
Bendall, Vivian Cooke, Robert (Bristol W) Gardiner, Edward (S Fylde)
Bennett, Sir Frederic (Torbay) Cope, John Gilmour, Rt Hon Sir Ian (Chesham)
Bennett, Dr Reginald (Fareham) Cormack, Patrick Glyn, Dr Alan
Benyon, W. Costain, A. P. Godber, Rt Hon Joseph
Biffen, John Craig, Rt Hon W. (Belfast E) Goodhan, phillp
Biggs-Davison, John Crouch, David Goodhew, Victor
Blaker, Peter Crowder, F. P. Goodlad, Alastair
Body, Richard Daiyell, Tam Gorst, John
Boscawen, Hon Robert Dean, Paul (N Somerset) Gow, Ian (Eastbourne)
Bottomley, Peter Dodsworth, Geoffrey Gower, Sir Raymond (Barry)
Bowden, A. (Brighton, Kemptown) Douglas-Hamilton, Lord James Grant, Anthony (Harrow C)
Boyson, Dr Rhodes (Brent) Drayson, Burnaby Gray, Hamish
Bradford, Rev Robert du Cann, Rt Hon Edward Grieve, Percy
Braine, Sir Bernard Dunlop, John Griffiths, Eldon
Brittan, Leon Durant, Tony Grist, Ian
Brocklebank-Fowler, C. Dykes, Hugh Grylls, Michael
Brooke, Hon Peter Eden, Rt Hon Sir John Hall-Davis, A. G. F.
Brotherton, Michael Edwards, Nicholas (Pembroke) Hamilton, Archibald (Epsom & Ewell)
Brown, Sir Edward (Bath) Emery, Peter Hamilton. Michael (Salisbury)
Bryan, Sir Paul svre Reginald Hampson, Dr Keith
Buchanan-Smith, Alick Farr, John Hannam, John
Buck, Antony Fell, Anthony Harrison, Col Sir Harwood (Eye)
Budgen, Nick Finsberg, Geoffrey Haselhurst, Alan
Bulmer, Esmond Fisher, sir Nigel Hastings, Stephen
Havers, Rt Hon Sir Michael Mawby, Ray Royle, Sir Anthony
Hawkins, Paul Maxwell-Hyslop, Robin Sainsbury, Tim
Hayhoe, Barney Mayhew, Patrick St. John-Stevas, Norman
Heath, Rt Hon Edward Meyer, Sir Anthony Shaw, Giles (Pudsey)
Heseltine, Michael Miller, Hal (Bromsgrove) Shelton, William (Streatham)
Hicks, Robert Mills, Peter Shepherd, Colin
Higgins, Terence L. Miscampbell, Norman Shersby, Michael
Hodgson, Robin Moate, Roger Silvester, Fred
Holland, Philip Molyneaux, James Sims, Roger
Hordern, Peter Montgomery, Fergus Sinclair, Sir George
Howe, Rt Hon Sir Geoffrey Moore, John (Croydon C) Skeet, T. H. H.
Howell, David (Guildford) More, Jasper (Ludlow) Smith, Dudley (Warwick)
Hunt, David (Wirral) Morgan, Geraint Smith, Timothy John (Ashfield)
Hunt, John (Ravensbourne) Morgan-Giles, Rear Admiral Speed, Keith
Hurd, Douglas Morris, Michael (Northampton S) Spence, John
Irving, Charles (Cheltenham) Morrison, Charles (Devizes) Spicer, Michael (S Worcester)
James, David Morrison, Hon Peter (Chester) Sproat, Iain
Jenkin, Rt Hon P. (Wanst'd&W'df'd) Mudd, David Stainton, Keith
Jesse], Toby Neave, Airey Stanbrook, Ivor
Johnson Smith, G. (E Grinstead) Nelson, Anthony Stanley, John
Jones, Arthur (Daventry) Neubert, Michael Steen, Anthony (Wavertree)
Jopling, Michael Newton, Tony Stewart, Ian (Hitchin)
Joseph, Rt Hon Sir Keith Nott, John Stokes, John
Kaberry, Sir Donald Onslow, Cranley Stradling Thomas, J.
Kimball, Marcus Oppenheim, Mrs Sally Tapsell, Peter
King, Evelyn (South Dorset) Page, John (Harrow West) Taylor, R. (Croydon NW)
King, Tom (Bridgwater) Page, Rt Hon R. Graham (Crosby) Taylor, Teddy (Cathcart)
Kltson, Sir Timothy Page, Richard (Workington) Tebbit, Norman
Knight, Mrs Jill Paisley, Rev Ian Temple-Morris, Peter
Knox, David Parkinson, Cecil Thatcher, Rt Hon Margaret
Lamont, Norman Pattie, Geoffrey Thomas, Rt Hon P. (Hendon S)
Langford-Holt, Sir John Perclval, Ian Townsend, Cyril D,
Latham, Michael (Melton) Peyton, Rt Hon John Trotter, Neville
Lawrence, Ivan Pink, R. Bonner van Straubenzee, W. R.
I swson, Nigel Powell, Rt Hon J. Enoch Vaughan, Dr Gerard
La Marchant, Spencer Prentice, Rt Hon Reg Viggers, Peter
Lewis, Kenneth (Rutland) Price, David (Eastleigh) Wakeham, John
Lloyd, Ian Pym, Rt Hon Francis Walder, David (Clitheroe)
Loveridge, John Raison, Timothy Walker, Rt Hon P. (Worcester)
Luce, Richard Rathbone, Tim Wall, Patrick
McAdden, Sir Stephen Rees, Peter (Dover & Deal) Walters, Dennis
McCrindle, Robert Rees-Davies, W. R. Warren, Kenneth
McCusker, H. Renton, Rt Hon Sir D. (Hunts) Weatherill, Bernard
MacGregor, John Renton, Tim (Mid-Sussex) Wells, John
MacKay, Andrew (Stechford) Rhodes James, R. Whitelaw, Rt Hon William
Macmillan, Rt Hon M. (Farnham) Ridley, Hon Nicholas Whitney, Raymond
McNair-Wilson, M. (Newbury) Ridsdale, Julian Wiggin, Jerry
McNair-Wllson, P. (New Forest) Rifkind, Malcolm Winterton, Nicholas
Made!, David Roberts, Michael (Cardiff NW) Wood, Rt Hon Richard
Marshall, Michael (Arundel) Roberts, Wyn (Conway) Young, Sir G. (Ealing, Acton)
Marten, Neil Rodgers, Sir John (Sevenoaks)
Mates, Michael Ross, William (Londonderry) TELLERS FOR THE NOES:
Mather, Carol Rossi, Hugh (Hornsey) Mr. Jim Lester and
Maude, Angus Rost, Peter (SE Derbyshire) Mr. Anthony Berry.
Maudling, Rt Hon Reginald

Question accordingly agreed to.

MR. SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the Business to be concluded at half-past Ten o'clock.

Lords amendment no. 41, as amended, agreed to.

Lords amendment: No. 42, in page 8, line 41, leave out subsection (3).

Mr. John Smith

I beg to move, That this House doth disagree with the Lords in the said amendment.

Question put forthwith and agreed to.

Mr. John Smith

I beg to move, in lieu of the Lords amendment No. 42,

in page 8, line 41, leave out 'prerogative and other'.

Question, That the amendment be made, put forthwith and agreed to.

Lords amendment: No. 45, in page 9, line 34, at end insert ("Provided that he has obtained the consent of the First Secretary and the Minister for the Civil Service for those appointments.")

Motion made, That this House doth disagree with the Lords in the said amendment.—[Mr. John Smith.]

Question put forthwith:

The House divided: Ayes 265, Noes 256.

Division No. 252] AYES [10.46 pm
Allaun, Frank Archer, Rt Hon peter Ashley, Jack
Anderson, Donald Armstrong, Ernest Ashton, Joe
Atkins, Ronald (Preston N) George, Bruce Ogden, Eric
Atkinson, Norman (H'gey Tott'ham) Gilbert, Rt Hon Dr John O'Halloran, Michael
Bagier, Gordon A. T. Gould, Bryan Orbach, Maurice
Bain, Mrs Margaret Gourlay, Harry Orme, Rt Hon Stanley
Barnett, Guy (Greenwich) Graham, Ted Palmer, Arthur
Barnett, Rt Hon Joel (Heywood) Grant, John (Islington C) Park, George
Bates, All Grimond, Rt Hon J. Parry, Robert
Bean, R. E. Grocott, Bruce Pavitt, Laurie
Benn, Rt Hon Anthony Wedgwood Hamilton, James (Bothwell) Pendry, Tom
Bennett, Andrew (Stockport N) Hardy, Peter Penhaligon, David
Bidwell, Sydney Harrison, Rt Hon Walter Perry, Ernest
Bishop, Rt Hon Edward Hart, Rt Hon Judith Price, C. (Lewisham W)
Blenklnsop, Arthur Hay man, Mrs Helena Price, William (Rugby)
Boardman, H. Healey, Rt Hon Denis Radice, Giles
Booth, Rt Hon Albert Hefler, Eric S. Rees, Rt Hon Meriyn (Leeds S)
Boothroyd Miss Betty Henderson, Douglas Reld, George
Bottomley, Rt Hon Arthur Hooley, Frank Richardson, Miss Jo
Boyden, James (Bish Auck) Horam, John Roberts, Gwilym (Cannock)
Bradley, Tom Howell, Rt Hon Denis (B'ham, Sm H) Robertson, George (Hamilton)
Bray, Dr Jeremy Hoyle, Doug (Nelson) Robinson, Geoffrey
Brown, Hugh D. (Provan) Huckfleld, Les Roderick, Caerwyn
Brown, Robert C. (Newcastle W) Hughes, Rt Hon C. (Anglesey) Rodgers, George (Chorley)
Buchan, Norman Hughes, Robert (Aberdeen N) Rodgers, Rt Hon William (Stockton)
Butler, Mrs Joyce (Wood Green) Hughes, Roy (Newport) Rooker, J. W.
Callaghan, Jim (Middleton & P) Irvine, Rt Hon Sir A. (Edge Hill) Roper, John
Campbell, Ian Irving, Rt Hon S. (Dartford) Rose, Paul B.
Canavan, Dennis Jackson, Colin (Brighouse) Rowlands, Ted
Cant, R. B. Jackson, Miss Margaret (Lincoln) Ryman, John
Carmichael, Nell Janner, Greville Sandelson, Neville
Carter, Ray Jay, Rt Hon Douglas Sedgemore, Brian
Carter-Jones, Lewis Jegcr, Mrs Lena Sever, John
Cartwright, John John, Brynmor Shaw, Arnold (Ilford South)
Castle, Rt Hon Barbara Johnson, James (Hull West) Sheldon, Rt Hon Robert
Clemltson, Ivor Johnson, Walter (Derby S) Short, Mrs Renée (Wolv NE)
Cocks, Rt Hon Michael (Bristol S) Johnston, Russell (Inverness) Silkin, Rt Hon John (Deptlord)
Cohen, Stanley Jones, Alec (Rhondda) Silkin, Rt Hon S. C. (Dulwich)
Coleman, Donald Jones, Dan (Burnley) Silverman, Julius
Conlan, Bernard Judd, Frank Skinner, Dennis
Cook, Robin F. (Edln C) Kaufman, Rt Hon Gerald Smith, Rt. Hon. John (N Lanarkshire)
Corbett, Robin Kerr, Russell Snape, Peter
Cowans, Harry Kilfedder, James Spearing, Nigel
Craigen, Jim (Maryhill) Lambie, David Spriggs, Leslie
Crawshaw, Richard Lamborn, Harry Steel, Rt Hon David
Cronln, John Lamond, James Stewart, Rt Hon Donald
Crowther, Stan (Rotherham) Lewis, Ron (Carlisle) Stewart, Rt Hon M. (Fulham)
Cryer, Bob Litterick, Tom Stoddart, David
Cunningham, Dr J. (Whiten) Loyden, Eddie Stott, Roger
Dalyell, Tarn Luard, Evan Strang, Gavin
Davidson, Arthur Lyon, Alexander (York) Strauss, Rt Hon G. R.
Davies, Bryan (Enfield N) Lyons, Edward (Bradford W) Summerskill, Hon Dr Shirley
Davies, Rt Hon Denzll Mabon, Rt Hon Dr J. Dickson Swain, Thomas
Davies, Ifor (Gower) McCartney, Hugh Taylor, Mrs Ann (Bolton W)
Davis, Clinton (Hackney C) McDonald, Dr Oonagh Thomas, Dafydd (Merioneth)
Deakins, Erlc McElhone, Frank Thomas, Jeffrey (Abertillery)
Dean, Joseph (Leeds West) MacFarquhar, Roderick Thomas, Mike (Newcastle E)
Dell, Rt Hon Edmund MacKenzle, Rt Hon Gregor Thomas, Ron (Bristol NW)
Dempsey, James Maclennan, Robert Thompson, George
Dewar, Donald McMillan, Tom (Glasgow C) Tlerney, Sydney
Dolg, Peter McNamara, Kevin Tlley, John
Dormand, J. D. Madden, Max Tlnn, James
Douglas-Mann, Bruce Magee, Bryan Tomlinson, John
Dully, A. E. P. Mallalleu, J. P. W. Tomney, Frank
Dunn, James A. Marks, Kenneth Torney, Tom
Dunnett, Jack Marshall, Dr. Edmund (Goole) Urwln, T. W.
Eadie, Alex Marshall, Jim (Leicester S) Varley, Rt Hon Eric G.
Edge, Geoff Mason, Rt Hon Roy Walnwrlght, Edwin (Dearne V)
Ellis, John (Brlgg & Scun) Maynard, Miss Joan Walker, Harold (Doncaster)
English, Michael Meacher, Michael Walker, Terry (Klngswood)
Evans, Gwynfor (Carmarthen) Mellish, Rt Hon Robert Ward, Michael
Evans, loan (Aberdare) Mikardo, Ian Watkins, David
Evans, John (Newton) Millan, Rt Hon Bruce Watkinson, John
Ewing, Harry (Stirling) Miller, Dr M. S. (E Kilbride) Watt, Hamlsh
Fsulds, Andrew Mitchell, Austin (Grimsby) Weetch, Ken
Fernyhough, Rt Hon E. Molloy, William Weitzman, David
Flannery, Martin Moonman, Eric Wellbeloved, James
Fletcher, Ted (Darlington) Morris, Alfred (Wythenshawe) Welsh, Andrew
Foot. Pt Hon Michael Morris, Rt Hon Charles R. White, Frank R. (Bury)
Ford, Ben Moyle, Rt. Hon. Roland White, James (Pollok)
Forrester, John Mulley, Rt Hon Frederick Whitehead, Phillip
Fowler, Gerald (The Wrekin) Murray, Rt Hon Ronald King Whltlock, William
Fraser, John (Lambeth, N'w'd) Newens, Stanley Wigley, Dafydd
Freeson, Rt Hon Reginald Noble, Mike Willey, Rt Hon Frederick
Garrett, John (Norwich S) Oakes, Gordon Williams, Rt Hon Alan (Swansea W)
Williams, Alan Lee (Hornch'ch) Wise, Mrs Audrey Young, David (Bolton E)
Williams, Rt Hon Shirley (Hertford) Woodall, Alec
Wilson, Gordon (Dundee E) Woof, Robert TELLERS FOR THE AYES:
Wilson, Rt Hon Sir Harold (Huyton) Wrigglesworth, Ian Mr. A. W. Stallard and
Wilson, William (Coventry SE) Mr. Tliomas Cox.
Aitken, Jonathan Goodhart, Philip Maxwell-Hyslop, Robin
Alison, Michael Goodhew, Victor Mayhew, Patrick
Arnold, Tom Goodlad, Alastair Meyer, Sir Anthony
Atkins, Rt Hon H. (Spelthorne) Gorst, John Miller, Hal (Bromsgrove)
Atkinson, David (B'mouth, East) Gow, Ian (Eastbourne) Mills, Peter
Awdry, Daniel Gower, Sir Raymond (Barry) Miscampbell, Norman
Baker, Kenneth Grant, Anthony (Harrow C) Moate, Roger
Banks, Robert Gray, Hamish Moiyneaux, James
Bell, Ronald Grieve, Percy Montgomery, Fergus
Bendall, Vivian Griffiths, Eldon Moore, John (Croydon C)
Bennett, Sir Frederic (Torbay) Grist, Ian More, Jasper (Ludlow)
Bennett, Or Reginald (Fareham) Grylls, Michael Morgan, Geraint
Benyon, W. Hall-Davis, A. G. F. Morgan-Giles, Rear Admiral
Berry, Hon Anthony Hamilton, Archibald (Epsom & Ewell) Morris, Michael (Northampton S)
BIffen, John Hamilton, Michael (Salisbury) Morrison, Charles (Devizes)
Biggs-Davison, John Hampson, Dr Keith Morrison, Hon Peier (Chester)
Blaker, Peter Hannam,John Mudd, David
Body, Richard Harrison, Col Sir Harwood (Eye) Neave, Airey
Boscawen, Hon Robert Haselhurst, Alan Nelson, Anthony
Bottomley, Peter Hastings, Stephen Neubert, Michael
Bowden, A. (Brighton, Kemptown) Havers, Rt Hon Sir Michael Newton, Tony
Boyson, Dr Rhodes (Brent) Hawkins, Paul Nott, John
Bradford, Rev Robert Hayhoe, Barney Onslow, Cranley
Braine, Sir Bernard Heath, Rt Hon Edward Oppenheim, Mrs Sally
Brittan, Leon Heseltine, Michael Page, John (Harrow West)
Brocklebank-Fowler, C. Hicks, Robert Page, Rt Hon R. Graham (Crosby)
Brooke, Hon Peter Hlggins, Terence L. Page, Richard (Workington)
Brotherton, Michael Hodgson, Robin Paisley, Rev Ian
Brown, Sir Edward (Bath) Holland, Philip Parkinson, Cecil
Bryan, Sir Paul Hordern, Peter Pattie, Geoffrey
Buchanan-Smith, Allck Howe, Rt Hon Sir Geoffrey Percival, Ian
Buck, Antony Howell, David (Guildford) Peyton, Rt Hon John
Budgen, Nick Hunt, David (Wirral) Pink, R. Bonner
Bulmer, Esmond Hunt, John (Ravensbourne) Powell, Rt Hon J. Enoch
Butler, Adam (Bosworth) Hurd, Douglas Prentice, Rt Hon Reg
Carlisle, Mark Irving, Charles (Cheltenham) Price, David (Eastleigh)
Chalker, Mrs Lynda James, David Pym, Rt Hon Francis
Channon, Paul Jenkin, Rt Hon P. (Wanst'd&W'df'd) Raison, Timothy
Churchill, W. S. Jessel, Toby Rathbone, Tim
Clark, Alan (Plymouth, Sutton) Johnson Smith, G. (E Grinstead) Rees, Peter (Dover & Deal)
Clark, William (Croydon S) Jones, Arthur (Daventry) Rees-Davies, W. R.
Clarke, Kenneth (Rushcliffe) Jopling, Michael Renton, Rt Hon Sir D. (Hunts)
Cooke, Robert (Bristol W) Joseph, Rt Hon Sir Keith Renton, Tim (Mid-Sussex)
Cope, John Kaberry, Sir Donald Rhodes James, R.
Corrr.ack, Patrick Kimball, Marcus Ridley, Hon Nicholas
Costain, A. P. King, Evelyn (South Dorset) Ridsdale, Julian
Craig, Rt Hon W. (Belfast E) King, Tom (Bridgwater) Rifkind, Malcolm
Crouch, David Kitson, Sir Timothy Roberts, Michael (Cardiff NW)
Crowder, F. P. Knight, Mrs Jill Roberts, Wyn (Conway)
Dean, Paul (N Somerset) Knox, David Rodgers, Sir John (Sevenoaks)
Dodsworth, Geoffrey Lamont, Norman Ross, William (Londonderry)
Drayson, Burnaby Langford-Holt, Sir John Rossi, Hugh (Hornsey)
du Cann, Rt Hon Edward Latham, Michael (Melton) Rost, Peter (SE Derbyshire)
Dunlop, John Lawrence, Ivan Royle, Sir Anthony
Durant, Tony Lawson, Nigel Sainsbury, Tim
Dykes, Hugh Le Marchant, Spencer St. John-Stevas, Norman
Eden, Rt Hon Sir John Lester, Jim (Beeston) Shaw, Giles (Pudsey)
Edwards, Nicholas (Pembroke) Lewis, Kenneth (Rutland) Shelton, William (Streatham)
Emery, Peter Lloyd, Ian Shepherd, Colin
Eyre, Reginald Loveridge, John Shersby, Mfchaei
Farr, John Luce, Richard Silvester, Fred
Fell, Anthony McAdden, Sir Stephen Sims, Roger
Finsberg, Geoffrey McCrindle, Robert Sinclair, Sir George
Fisher, Sir Nigel McCusker, H. Skeet, T. H. H.
Fletcher, Alex (Edinburgh N) MacGregor, John Smith, Dudley (Warwick)
Fookes, Miss Janet MacKay, Andrew (Stechford) Smith, Timothy John (Ashfleld)
Forman, Nigel Macmillan, Rt Hon M. (Farnham) Speed, Keith
Fowler, Norman (Sutton C'f'd) McNair-Wllson, M. (Newbury) Spence, John
Fox, Marcus McNair-Wilson, P. (New Forest) Spicer, Michael (S Worcester)
Fraser, Rt Hon H. (Stafford & St) Madel, David Sproat, Iain
Fry, Peter Marshall, Michael (Arundel) Stainton, Keith
Galbraith, Hon T. G. D. Marten, Neil Stanbrook, Ivor
Gardiner, George (Reigate) Mates, Michael Stanley, John
Gardiner, Edward (S Fylde) Mather, Carol Steen, Anthony (Wavertree)
Gilmour, Rt Hon Sir Ian (Chesham) Maude, Angus Stewart, Ian (Hltchin)
Glyn, Dr Alan Maudling, Rt Hon Reginald Stokes, John
Godber, Rt Hon Joseph Mawby, Ray Stradling Thomas. J.
Tapsell, Peter Vaughan, Dr Gerard Whitelaw, Rt Hon William
Taylor, R. (Croydon NW) Viggers, Peter Whitney, Raymond
Tayior, Teddy (Cathcart) Wakeham, John Wiggin, Jerry
Tebbit, Norman Walder, David (Clitheroe) Winterton, Nicholas
Temple-Morris, Peter Walker, Rt Hon P. (Worcester) Wood, Rt Hon Richard
Thatcher, Rt Hon Margaret Wall, Patrick
Thomas, Rt Hon P. (Hendon S) Walters, Dennis TELLERS FOR THE NOES:
Townsend, Cyril D. Warren, Kenneth Sir George Young and
Trotter, Neville Weatherill, Bernard Lord James Dounlas-Hamilton.
van Straubenzee, W. R. Wells, John

Question accordingly agreed to.

Lords amendment no. 46 disagreed to.

Lords amendments nos. 43, 44 and 47 to 54 agreed to.

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