Commons Sitting of 10 February 1998

Preamble
The House met at half-past Two o'clock
PRAYERS
[MADAM SPEAKER in the Chair]
PRIVATE BUSINESS

  LLOYDS TSB BILL [Lords]
  Order for Second Reading read.
  To be read a Second time on Tuesday 17 February.

Oral Answers to Questions
  FOREIGN AND COMMONWEALTH AFFAIRS
  The Secretary of State was asked—

  Europe-Asia Conference
  Mr. Hill: If he will make a statement on the agenda for discussion at the Europe-Asia (ASEM2) Conference to be held in London in April. [26427]
  The Secretary of State for Foreign and Commonwealth Affairs (Mr. Robin Cook): We look forward to holding the ASEM2 summit in London on 3 and 4 April, the first of its kind in Europe. The summit will give my right hon. Friend the Prime Minister a unique opportunity for wide-ranging, informal and productive discussions with 25 world leaders, representing countries that account for half the economy of the globe. We expect ASEM2 to discuss the financial turbulence in the region, measures to improve business and trade links and co-operation in response to environmental threats such as forest fires.
  Mr. Hill: I thank my right hon. Friend for his reply. As he has remarked, south-east Asia has gone through great political and economic turbulence in recent times, and he will be aware how important a growing and dynamic Pacific rim is for British exports. What steps is the Foreign Office taking to promote British exports to the region?
  Mr. Cook: I am pleased to assure my hon. Friend that, when I was in the region last autumn, I lobbied successfully on behalf of British companies. We have ensured that a third of staff at our embassies in those posts are dedicated to commercial promotion work. As a result, they are winning orders for Britain.
  My hon. Friend is right to draw attention to the financial turbulence in the area. We will undoubtedly discuss that issue at ASEM2, because we are well aware that that financial turbulence can have an impact on us.
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  That is precisely why Europe is one of the leading contributors of funds to ensure that we quell that turbulence and enable those countries to resume their growth trend.

  Arms Sales
  Mr. Berry: What measures are included in the United Kingdom proposals for an EU code of conduct on arms sales to close loopholes on brokering and licensed production. [26428]
  Mr. Cohen: What measures are included in the United Kingdom proposals for an EU code of conduct on arms sales to close loopholes on brokering and licensed production. [26437]
  Mr. Robin Cook: The Government are currently considering the recommendations of the Inter-Departmental Committee on Trafficking in Arms. We will announce our conclusions during this Session and will have particular regard to the legal loophole that permitted a UK company to broker the supply of small arms to Hutu extremists.
  The proposals for an EU code of conduct, which we have tabled jointly with France, deal with the export of arms produced domestically and therefore do not deal directly with the brokering of arms that are produced by a third country. I am pleased to tell the House that our proposed code of conduct has been well received throughout Europe and will ensure that all member states apply the same tough standards against the supply of small arms to countries that might use them to repress freedom.
  Mr. Berry: I thank my right hon. Friend for his answer. Does he share the concerns of many people who responded to the Department of Trade and Industry consultation on the Scott report—which is two years old on Sunday—that UK export controls do not cover brokering and licensing arrangements? Will he confirm that some European countries have introduced controls that cover brokering: Germany, Netherlands and soon Belgium? Will he give further consideration to the inclusion of such controls in the UK's proposals for an EU code of conduct on arms exports?
  Mr. Cook: I would be very reluctant at this stage to go back to square one on the code of conduct. We have achieved agreement with the other major arms exporter in Europe—France. Those proposals have been circulated to all EU partners and have been overwhelmingly well received by them. I would therefore be reluctant to introduce new matter into the proposals, but I assure my hon. Friend that we are vigorously examining how we might respond nationally to the issue that he highlights. In the meantime, as he reminds me that we are approaching the second anniversary of the Scott report, may I say that we are determined to avoid the previous regime's experience in supplying export cover for arms and other equipment to the tune of £800 million, which is still unpaid by Saddam Hussein and has become a charge on the taxpayer.
  Mr. Cohen: Will my right hon. Friend take action to stop licensed production becoming a major loophole in

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  the European Union code of conduct on arms sales? Has he seen reports that the Nottingham-based company, Heckler and Koch, won a technology transfer contract to produce the latest assault rifles in Turkey, and similar rifles then found their way to Iran and the Sudan under the licensed production procedures? Is it not essential that licensed production is covered by an arms control export system that applies to both the United Kingdom and the European Union?
  Mr. Cook: My hon. Friend raises a serious issue, but in practical terms it is extremely complex and difficult to control the transfer of technology in the same way that we can license the physical export of weapons. Where licensed production takes place, we try to encourage an arrangement by which we have control over future exports and their end use.
  Mr. Wells: Would the proposed EU code of conduct prevent France from exporting arms to Iraq?
  Mr. Cook: The code of conduct that we are proposing is based on the rules that Britain adopted last summer. Under those rules, we could not export arms to Iraq. It is one of the great regrets of our history that the previous Government exported machine tools to Iraqi armaments manufacturers.
  Mr. Streeter: I notice that the right hon. Gentleman did not answer the point about France. If, for example, under the code of conduct, a British company is refused a licence to supply a certain order for arms and a notice to that effect is circulated to all European partners as proposed by the code, what is to prevent the Government of another member state from interpreting the code of conduct in a different way and permitting a company in that member state to meet the order? Is not that precisely what happens in the real world, and what do the Government intend to do about it?
  Mr. Cook: The hon. Gentleman rightly describes exactly what happened throughout the past 18 years under the previous Government, who made no attempt to establish a binding code of conduct. The code of conduct provides that any country contemplating taking up an order that another member state has refused must first notify that member state and then enter into dialogue with it. I assure the hon. Gentleman that, if any country proposed to take up a contract that we had denied, we would pursue the matter through all 14 member states.

  Algeria
  Mr. Gareth Thomas: What steps his Department has taken to reduce conflict and human rights abuses in Algeria. [26429]
  The Minister of State, Foreign and Commonwealth Office (Mr. Derek Fatchett): We believe that in order to achieve progress in Algeria, we must keep the Algerians engaged in political dialogue, express our points of view to them and discuss their concerns and requirements. I led a European Union troika mission on 19 and 20 January 1998. The mission's report led to the conclusions that my
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  right hon. Friend, the Foreign Secretary announced after the General Affairs Council on 26 January. They have given us a sound base on which to build.
  Mr. Thomas: I am grateful to my hon. Friend for that reply. Will he confirm that when the United Nations Commission on Human Rights meets in Geneva next month, human rights abuses in Algeria will be fully debated?
  Mr. Fatchett: It is important that there is a full debate on human rights in Algeria. During the troika mission we took the opportunity time and again to say to the Prime Minister and Foreign Minister of Algeria that we wished for greater openness and transparency on those issues. We urged the Algerians to invite the United Nations special rapporteurs, but unfortunately they declined to do so. We continue to maintain pressure in that direction. We believe that it is important that Algeria invites the special rapporteurs.
  Mr. Faber: In view of the Government's ethical foreign policy, has the Minister had a chance to reconsider his views of 19 November, when he said that the situation in Algeria was an internal problem? Is he aware that Mary Robinson, the United Nations High Commissioner for Human Rights, expressed exactly the opposite view, saying that human rights had no international borders and that the international community should seek to end such violence? Does he now share her views, and if he does, should not the Government propose more concrete action during the United Kingdom presidency of the European Union?
  Mr. Fatchett: It is difficult to understand where the hon. Gentleman has been over the past month. The simple fact is that, under Britain's presidency, the European Union has taken action. We sent a troika mission to Algeria. The United Kingdom is the first country to have taken such an initiative. Rather than complaining, it is about time that the hon. Gentleman applauded the Government for the action that they have taken.
  Ann Clwyd: Does my hon. Friend agree that there is overwhelming evidence from human rights organisations that Algerian generals use torture as an instrument of rule, and that no one believes that the 80,000 victims of the war have been killed by only one side?
  Mr. Fatchett: That is why we urge the Algerian Government to be more open and transparent, and therefore to be more accountable, on human rights issues. That is also why we urge them to invite United Nations special rapporteurs. We think that that is the right way of dealing with all the fears and innuendos that there may be about Algeria's record. We will continue to make that argument to them.

  Sudan
  Rev. Martin Smyth: What assessment he has made of progress of negotiations in Sudan. [26432]
  Mr. Fatchett: The resumption of peace negotiations—on 30 October, in Kenya—between the Government of Sudan and the Sudan People's Liberation Army under the

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  sponsorship of the Inter-Governmental Authority on Development is a significant step forward in the search for peace in Sudan and an end to the suffering of the Sudanese people. We understand that the negotiations focused on the two central issues of self-determination and the relationship between state and religion. Unfortunately, the talks were suspended on 11 November and are due to resume in April.
  Rev. Martin Smyth: I appreciate the Minister's response. With him, I welcome movement in the negotiations but regret their suspension. Does he agree that there is also need for the Government to try to develop Sudan's infrastructure—particularly in the southern, western and northern parts of Sudan—and to ensure that aid sent by aid organisations outwith the country get to the places for which it was designed?
  Mr. Fatchett: I agree with the hon. Gentleman that there is a need for that infrastructure development and a need to ensure that aid reaches those who are desperately in need. The best circumstances in which we can achieve those objectives will be achieved by ensuring that there is a peace settlement between the warring parties, which is why we have supported and will continue to support the IGAD initiatives.
  Mr. Flynn: Has the Minister seen today's report by the charity Christian Solidarity International stating that tens of thousands of Christian children are held as slaves in northern Sudan? Is it not in itself a tragedy that the wars in that country, which have killed more people than have died in Rwanda, are unknown because they have not been observed by television cameras? Is it not time that we acted, in so far as we can, to use our influence in the area to establish peace and elementary standards of human rights?
  Mr. Fatchett: My hon. Friend is right in saying that the events which he describes and which have been described by various organisations are a tragedy. The holding of young children by forces in the north of Sudan is more than a tragedy—it is an evil practice which I am sure that every hon. Member will condemn. I assure him that, through IGAD, we will do all that we can to help the peace negotiation process, which is crucial for everyone living in Sudan.

  Citizenship
  Dr. Tonge: If he will make a statement on the review his Department is currently undertaking into British citizenship for the people of British dependencies. [26433]
  Mr. Robin Cook: Last week, I announced the progress on our review of the dependent territories. We propose to improve their administration through a single specialist department, to require of them the highest standards of financial regulations and observance of international obligations on human rights, and to rename them UK overseas territories. We have also announced that the Government are exploring the possibility of granting British citizenship to all the citizens of those overseas territories who do not already have it. We are examining
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  the matter sympathetically and urgently. We are currently in discussion on all elements of that package with the Governments of the overseas territories.
  Dr. Tonge: Will the Foreign Secretary assure the House that the Government are doing everything possible to persuade the dependent territories to amend their laws against homosexuality? Is he aware that, in October, a written answer from the Foreign Office assured me that the Governments of the dependent territories had received an instruction to review their laws on homosexuality, yet in January the Office of the Governor of the Cayman Islands said that it had heard about the communique but not received anything officially? Have the Government contacted the dependent territories on the issue or not?
  Mr. Cook: First, I encourage the hon. Lady and other hon. Members to use the new term of overseas territories. The term dependent territories does not do justice to the territories' very strong economies and self-government. That is why we propose to rename them.
  On the particular human rights point, I singled out the issue of corporal and capital punishment in my speech to the Dependent Territories Association, which we shall be consulting. I also stressed the need to ensure that the territories' laws fully conform with international obligations, which will require some—not all—to address their statute on homosexuality.
  Ms Abbott: The Foreign Secretary will be aware that his speech at the dependent territories conference last week was widely appreciated by representatives of the territories that attended. On the question of nationality, does he agree that we are talking only about 180,000 people? The largest single territory, Bermuda, has only 60,000 people, none of whom are likely to want to leave their very high standard of living to come here. Overseas territories simply want help with access to education and an end to the humiliation of black politicians and white politicians having to go through different channels at Heathrow airport. Does he recognise that it would be widely appreciated outside the House, as a graceful gesture as we approach the millennium, if citizenship were granted to overseas territories citizens?
  Mr. Cook: I think that I would be wise to welcome my hon. Friend's appreciation while it is available. I fully agree with what she has just said. She slightly overstates the number of people concerned, because citizenship is already available to the citizens of Gibraltar and the Falkland Islands. That of course gives rise to some sensitivity in other territories of a different racial mix. She also rightly identified two points of great irritation to the citizens of dependent territories: when they come to Britain they have to go through the "other nationality" channel, and if they go to Europe, they need a visa. I hope that it will be possible for us to remove those irritations.
  Mrs. Virginia Bottomley: In the light of the Foreign Secretary's answer, what assurance can he give that such treatment will be consistent with the handling of the people of Hong Kong?
  Mr. Cook: Our proposal is to improve the consistency of treatment of citizens of overseas territories. At present,

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  two territories have citizenship and the rest do not. Our proposal provides even-handed and consistent treatment for all our remaining overseas territories. Those who still represent or live in our overseas territories find it hard to be told that they cannot have citizenship because of what were the rules for Hong Kong, but now it is no longer a dependent territory.

  Middle East
  Mr. Jim Marshall: if he will make a statement on his Department' s assessment of likely progress on the middle east peace process. [26435]
  Mr. Robin Cook: We believe strongly that the best hope for progress towards a lasting peace in the middle east is through the current process, based on the Oslo agreements and the principle of land for peace. In particular, we believe that significant and credible Israeli troop redeployments from the west bank and an end to the expansion of Israeli settlements in the west bank are essential to restore confidence. We shall continue to work for an outcome that offers peace with security to the Israeli people and peace with justice to the Palestinian people.
  Mr. Marshall: I thank my right hon. Friend for that reply, but may I push him a little further? Does he agree that Israel should comply fully with international agreements, into which it freely entered some years ago, and with successive United Nations resolutions on the middle east? Does he further agree that, if Israel were to do that, it would not only progress the middle east peace process but make it easy for Arab states which wish to support further action against Saddam Hussein to do so?
  Mr. Cook: My hon. Friend is correct to draw attention to the read-across in the minds of the population of many Arab countries between the current confrontation in Iraq and the stalemate in the middle east peace process. To ensure that we are not vulnerable to any charge of double standards, and for the sake of peace in the middle east, it is important that we are robust in insisting that the terms of the Oslo accords are carried out. I therefore assure him that we shall continue to condemn any breach of the Oslo accords. In particular, we call on the Government of Israel to honour the agreement entered into by the previous Israeli Government, which, because it has the force of a treaty, is binding on successor Governments.
  Mr. Flight: What information, if any, does the Foreign Secretary have on the production of biological and chemical weapons in other parts of the near east? I am thinking in particular of Syria and Libya, which are a factor in the stability of the area and the peace treaty.
  Mr. Cook: I am not aware of such production in Syria. Libya, as the hon. Gentleman knows, is also subject to very tight sanctions, one of the aims of which is to ensure that there is no possibility of that country developing any chemical or biological weapons.
  Mr. Wyatt: Can my right hon. Friend say what new European initiatives to push forward the middle east peace process will be made during Britain's presidency of the European Union?
  Mr. Cook: I am pleased to tell my hon. Friend that the European Union is the major provider of funds to the
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  peace process. During Britain's presidency, we shall consider how we roll forward that budget to ensure that we continue to support the peace process practically. In particular, we shall look for initiatives to boost confidence in the middle east and address the economic problems of the Palestinian authority, perhaps through supporting the Gaza sea port and airport. I shall visit the middle east next month to take forward those initiatives.
  Mr. Menzies Campbell: Is it not clear that an overwhelming obstacle to the peace process—indeed, one that causes the most offence to the Palestinian people—is the Israeli Government's persistent breaches of international law on settlements? If the Government, and those of us who support them in their attitude to Saddam Hussein and his breaches of international law, are to carry any credibility, must not we be even-handed in our condemnation of other countries in the middle east that so obviously breach the principles of international law?
  Mr. Cook: I agree absolutely with the hon. and learned Gentleman. We have done precisely what he says—only last week in the middle east, the Minister of State, my hon. Friend the Member for Leeds, Central (Mr. Fatchett), condemned the settlement programme and the expansion of the settlements. The Israeli Government should be under no illusion: whatever they gain in domestic opinion, they lose in international opinion by jeopardising the peace process.
  Mrs. Ellman: Does my right hon. Friend agree that the Palestinian demonstrations in support of Saddam Hussein that took place over the weekend will not help the cause of peace, as they intensify the anxieties about security of those Israelis who genuinely want peace for land? Given that the memory of the 39 Iraqi Scud missiles that landed on Israeli towns is still uppermost in Israeli citizens' minds, will my right hon. Friend call on the Palestine National Authority to act responsibly, just as he rightly calls on the Israeli Government to act responsibly?
  Mr. Cook: We would welcome support for our position on Iraq from any quarter, including the Palestinian authority. I agree that the Israeli people are fully entitled to be secure and to feel that their safety is catered for in any peace settlement. It is also important that we remember that those who voted for the current Israeli Government did not vote for a suspension of the peace process; they voted for peace with security. Unless the Palestinian people are offered peace with justice, there can be no peace with security.
  Mr. Howard: The Foreign Secretary has not told us what action he has taken under Britain's presidency to help break the logjam. Will his third planned visit to the middle east, which is due to take place next month, be cancelled as the other two were? Does he accept, as the hon. Member for Leicester, South (Mr. Marshall) suggested, that the logjam in the peace process is hindering and complicating any action to solve the situation in Iraq? Will he impress that on the Government of Israel, with all the status of his presidency of the European Union Council of Foreign Ministers?
  Mr. Cook: Just for the record, one of those visits was cancelled because of religious holidays in the middle east

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  and the other because of the previous Iraqi crisis. To respond to the right hon. and learned Gentleman's points about the presidency—[Interruption.] If the House will allow me to deal with the question, I can tell him that we had a discussion on the middle east peace process at the last meeting of the General Affairs Council and as a result I have been in close contact with Madeleine Albright. We anticipate that we may have a freer and closer access to the American-brokered initiatives on the peace process. As part of that, we are producing our own complementary measures on the Gaza sea port and airport, to which I referred.
  Mr. Ernie Ross: May I warmly congratulate my right hon. Friend on his robust comments about Prime Minister Netanyahu at the weekend? There is a problem as far as the Netanyahu Government are concerned. On the one hand, the Ministry of the Interior is allowing 132 housing units to be built in Ras al-Amud and on the other, the security service is trying to suggest that the Palestinians will complain about that simply to cause problems in the area. Will my right hon. Friend take this opportunity to condemn any attempts to build on the Ras al-Amud area of Jerusalem?
  Mr. Cook: I am very happy to condemn that, and to repeat the statement made by the Minister of State, who did exactly that in the middle east. The Government of Israel are in no doubt as to our views and the overwhelming views of the international community. If they want to return to the peace process, they have to abide by the interim agreements, which means ending the expansion of the settlements and the closure programme, which interrupts the free passage of the Palestinian people.

  Recruitment Policies
  Mr. Hawkins: What plans he has to change the recruitment policies of his Department. [26436]
  Mr. Ruffley: If he will make a statement on his Department's policy on the appointment of non-career civil servants. [26448]
  Mr. Fatchett: Recruitment to civil service appointments must follow the civil service commissioners' recruitment code. We are working to make the Foreign and Commonwealth Office a more open and diverse organisation representative of modern Britain. We have appointed Mr. Linbert Spencer as an adviser on minority ethnic issues to help promote the FCO as an attractive career opportunity for members of minority ethnic groups. Separately, we have established a short-term business attachment scheme to strengthen our export promotion efforts by placing secondees from business into posts overseas.
  Mr. Hawkins: The Minister and various other Labour Front-Bench spokesmen both before and after the election were fond of making portentous statements about the rights of women in the work force. In the light of those, will the Foreign Office now release the ban on Anne Bullen responding to the outrageous attacks on her by Labour Front-Bench spokesmen and their spin doctors?
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  In the light of the Foreign Secretary's recent answer, is not it clear that to avoid religious holidays in the middle east, he probably needs yet another diary secretary?
  Mr. Fatchett: Given what I have read in the newspapers, I am not sure that there is any ban on Anne Bullen—she seems to have been quite vocal. If anyone had been watching the response to my earlier answer, they would have seen one of the reasons why the modern Conservative party is unelectable. As soon as I mentioned the needs of the ethnic minority communities, all that Conservative Members could do was to find it amusing. It is a serious issue, and I do not treat that section of our community with contempt.
  Mr. Ruffley: Does the Minister now accept that, if an individual from outside the civil service is being considered for a post within his Department, any personal involvement with any Minister should be declared at the first opportunity? If he accepts that principle, can he explain why the Foreign Secretary did not follow it in the case of Mrs. Gaynor Regan.
  Mr. Fatchett: All those issues were explained in full last week. I find it wholly depressing that a modern opposition party—I understand why it is in opposition—cannot deal with important issues of state. Opposition Members stay in the gutter and they have got even lower than the gutter in some of their questions. I understand that the hon. Gentleman and some of his colleagues were special advisers to previous Conservative Governments—I wonder how they were appointed.
  Mr. Gerrard: Does my hon. Friend accept that, to those of us who represent constituencies with significant numbers of ethnic minority constituents, it is no laughing matter that people from those communities have been shut off for so long from jobs in the civil service, especially jobs at its higher levels? Will he tell us what his Department is doing to put that right and to ensure that at the top level, including that of ambassadors, we have people who are representative of the communities that we represent?
  Mr. Fatchett: My hon. Friend asks a valid question. One of our reasons for appointing Linbert Spencer is so that we have help and advice on those issues. I look forward to the day when British ambassadors throughout the world truly reflect the multiracial and multi-ethnic nature of modern Britain.
  Mr. Sheerman: I congratulate my hon. Friend on broadening the scope of recruitment, and especially on the temporary secondments from business. However, will he do more in terms of getting business acumen around the world to open up our embassies and make them more approachable and accessible? Will he also expand the policy to bring in senior local authority officers and academics, as adding such people to our permanent foreign service could bring nothing but gain?
  Mr. Fatchett: The short-term business attachment scheme is working well. There has been substantial private sector interest, which shows the extent and depth of the partnership between private industry and the new Labour Government. We shall continue to develop the

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  scheme. I agree with my hon. Friend that bringing in expertise and experience is extremely useful to the Foreign Office.
  Sir Peter Tapsell: When I was a very young man, Anthony Eden said to me that he thought that attacks ad hominem in the House were nearly always a mistake. Would not the institution that we are proud to serve do itself far more credit if hon. Members on both sides of the House abandoned them?
  Mr. Fatchett: I wholly agree with the hon. Gentleman, who makes his point remarkably well. I suspect that he read the Hansard report of last Wednesday's Adjournment debate and realised that his party had shot itself in the foot on that occasion.

  Brazil (State Visit)
  Mr. Blizzard: If he will make a statement on the recent state visit of the President of Brazil. [26438]
  The Minister of State, Foreign and Commonwealth Office (Mr. Doug Henderson): The state visit by the President of Brazil was a significant milestone in the steady strengthening of UK-Brazil relations in recent years. The clear, highest-level commitment to the further development of our relations was demonstrated by my right hon. Friend the Prime Minister and President Cardoso in signing a joint action plan identifying key areas for future co-operation.
  Mr. Blizzard: I thank my hon. Friend for that reply; it is clear that relations between Brazil and Britain are the best they have been for many years. Does my hon. Friend agree that that is a reflection of the consolidation of democracy in Brazil, where the President was freely elected with more than 50 per cent. of the vote, and of the tremendous trading opportunities between our two countries, with each seeing the other as the gateway to a larger market—the European Union in Europe and Mercosur in south America? In view of that and of the fact that Brazil's is the seventh largest economy in the world, would my hon. Friend consider making an official visit to Brazil in the near future? Would he also be willing to ask my right hon. Friend the Prime Minister to make a bilateral official visit to that country, the first bilateral official visit to Brazil ever made by a British Prime Minister?
  Mr. Henderson: I am grateful to my hon. Friend for raising that point. It is important steadily to build relations with Brazil, because it is a large country with a huge potential export market for our manufacturers. As part of our export forum programme, an export forum will be established in Brazil to try to boost that trade.
  The question of a prime ministerial visit is a matter for the Prime Minister, and he no doubt discussed that with the President of Brazil. The Minister of State, my hon. Friend the Member for Manchester, Central (Mr. Lloyd), who normally deals with such matters, has already been to Brazil and visited his counterpart. He has also received his counterpart here, as the beginning of the process of building relationships.
  Mr. Wilkinson: Following the most successful and welcome visit by His Excellency the President of Brazil

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  to this country, will the present Government continue the "link up with Latin America" programme of the Department of Trade and Industry, sponsored by the previous Administration, with particular emphasis on the Mercosur countries of Paraguay, Uruguay, Argentina, Brazil—of course—and, last but not least, Chile, which is associated with Mercosur? All those countries have economies that have greatly reformed and offer remarkable opportunities for British business.
  Mr. Henderson: I am happy to agree with the hon. Gentleman. It is important that we build trade links throughout south America. Huge and increasing markets are potentially available to our manufacturers, and democracy is increasingly becoming established in those countries. I met the Foreign Ministers of Mercosur in New York in September and many of those issues were under discussion. I hope that we will continue to press them.
  Mr. Corbyn: During the meetings with the representatives of Brazil, did my hon. Friend have a chance to discuss the rapid deforestation of the Amazonian rain forest and the problems that that poses for the world's climate and environment? Did he also have an opportunity to discuss the denial of human rights to many of the indigenous people of the Amazonian rain forest, who have seen their land and rivers polluted by illegal mining activities, often conducted with western finance and by western companies?
  Mr. Henderson: Those matters were discussed by my hon. Friend the Minister of State when he visited Brazil and when he received the Foreign Minister here. My hon. Friend took up the question as part of the dialogue. The need to help the Brazilian Government to realign their agricultural industry was also part of those discussions and we are currently involved in a bilateral agreement with the Brazilians to the sum of £16 million. We have given them £6.5 million in aid to help the diversification process, and we hope that that will benefit the environment.

  Geneva Conventions
  Ms Ryan: If he will make a statement on the ratification of the additional protocols to the 1949 Geneva conventions. [26441]
  Mr. Doug Henderson: I am pleased to say that we have ratified the additional protocols to the Geneva conventions. The Minister of State, my hon. Friend the Member for Manchester, Central (Mr. Lloyd), announced that to the House in a written answer to my hon. Friend the Member for Dartford (Dr. Stoate) on 28 January.
  Ms Ryan: I thank my hon. Friend for that answer. What measures will the Government take to ensure that that ratification is genuinely meaningful in practice?
  Mr. Henderson: I am grateful to my hon. Friend for that question. The Foreign Office will of course undertake continual monitoring of those matters. On the same day the protocols were signed, the Government announced a £5.8 million aid scheme to the International Red Cross, and part of its endeavours include ensuring that those protocols are adhered to.

  Diary Secretary
  Dr. Julian Lewis: If he informed his officials of his relationship with his nominee for the post of diary secretary when he proposed her for that post. [26442]
  Mr. Robin Cook: Madam Speaker—[Interruption.] I think I know which question the hon. Gentleman is asking.
  As I have already told the House on 29 January, no. I myself concluded that, in view of my relationship with Ms Regan, it would not be right to appoint her as my diary secretary. The nominee for the post was then chosen by officials from career civil servants through normal routine procedures. What has happened in this case is that a personal appointment under the previous Government has been replaced by a public appointment under this Government.
  Dr. Lewis: I thank the Foreign Secretary for that answer. On reflection, does he realise that, if he had chosen to confide in his officials, it would not have taken him nine days to come to the blindingly obvious conclusion that what he was proposing was an unethical policy for someone in his position in the Foreign Office?
  Mr. Cook: During those nine days, I attended the intergovernmental conference in Noordwijk, I attended the formation of the NATO-Russia Joint Permanent Council in Paris and I attended the Sintra meeting on Bosnia. I know that the hon. Member and some of his colleagues have spent the past 19 days doing nothing but think about my diary secretary, but I have to say that Foreign Secretaries often find other things to work on in nine days as well.
  Mr. Gapes: Does my right hon. Friend agree that the position of diary secretary in any organisation, especially in government, is an extremely important political position, the occupant of which must have the total confidence of the person for whom they are working? In those circumstances, does he agree that it would be very unusual, if not ridiculous, to have an active Conservative, appointed by a political appointee of a previous Government, continuing and working for a Labour Foreign Secretary of an incoming Government?
  Mr. Cook: Miss Bullen was recruited by the previous Foreign Secretary, from a post where she was working as personal assistant to a Tory peer who had been formerly a Minister in a Tory Government. She was appointed by a totally exceptional method, by Order in Council. What is especially regrettable is that she was appointed in preference to three career civil servants who had applied for the job.
  Mr. Howard: Was anything said to the right hon. Gentleman between 21 and 30 May that had any bearing on the decision not to appoint Gaynor Regan as his diary secretary?
  Mr. Cook: Absolutely nothing. The right hon. and learned Gentleman persists under the fantasy that MI5, the permanent secretary or the Prime Minister were involved. Nothing was said to me that altered my own personal judgment. If I may say to the right hon. and
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  learned Gentleman, as he is notorious for having dismissed Derek Lewis, the Director General of the Prison Service, at a cost to the taxpayer of £300,000, in view of his expensive track record a period of silence from him would be welcome.

  Iraq
  Mr. Viggers: If he will list the measures taken by Her Majesty's Government to support the effectiveness of UN weapon inspection teams in Iraq. [26443]
  Mr. Robin Cook: The UK is one of the main providers of specialist personnel to the United Nations Special Commission. We have been at the forefront of measures both in New York and in the Gulf to press Saddam to grant UNSCOM the full access required by Security Council resolutions, which is essential if UNSCOM is to carry out its work effectively. Later today, I shall make a further statement on Iraq.
  Mr. Viggers: Does the Foreign Secretary agree that, whereas everyone understands that high-technology nuclear weapons pose a threat to the world population, many may find it difficult to realise that a small jar of biological agent can similarly kill millions of people? Does the Foreign Secretary agree that the possession of chemical and biological weapons by Saddam Hussein, and his continued flouting of Security Council resolution 687, poses a threat to world stability, and will he use all diplomatic channels to seek to ensure that we now have full support for taking any measures necessary to ensure that resolution 687 is accepted?
  Mr. Cook: The hon. Member is correct in everything that he says. Saddam Hussein has the capacity to produce 200 tonnes of the VX nerve agent. If he had the means to deliver it, that would be sufficient to wipe out human life from the planet. It is very important for us, therefore—not only for the countries immediately adjacent to Iraq—that every possible diplomatic pressure, and the clear resolve to use military force if necessary, is applied to ensure that he is not left in possession of such an arsenal of tenor. After all, he has already used nerve gas against his own people, in Halabja 10 years ago. He is perfectly capable of using it against the people of other countries.
  Ms Squire: Does my right hon. Friend agree that what are at stake are not only the policy objectives of the United Kingdom and the United States but the authority of the United Nations? We have a stark choice: either we agree to face up to evil dictatorship and support the United Nations or we turn our back on ever trying to achieve human rights and world peace.
  Mr. Cook: My hon. Friend is correct. This is not a confrontation between the UK and the US and Iraq; this is a confrontation between the United Nations and Iraq—and if Iraq were to win in this confrontation, the UN and the Security Council would have no authority in any future confrontation against any future dictator.
  Mr. Amess: What recent representations he has received on the position of Kuwaiti nationals held in Iraq. [26444]
  Mr. Fatchett: We take a keen interest in the issue of Kuwaiti detainees and play an active role in the tripartite

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  commission. We continue to insist that Iraq provide full information on the whereabouts of the detainees. We assume that Saddam Hussein's recent offer to release Arab prisoners will include the more than 600 Kuwaiti detainees held in Iraq since the Gulf war. That would at last mean the end of their seven-year ordeal.
  Mr. Amess: Notwithstanding his comments and in light of the Government's professed ethical foreign policy, does the Minister agree that the release of 600 Kuwaiti civilians—many of whom are women and children—held as prisoners of war in Iraq should be made a condition of removing sanctions, in addition to allowing the United Nations Special Commission's work of examining and destroying chemical and biological weapons?
  Mr. Fatchett: The detainees' fate underlines the point made by my right hon. Friend the Secretary of State and others during the exchange on the previous question. We know the record of Saddam Hussein as a dictator and the threat that he represents to others. We shall certainly continue to work through the tripartite commission to make the return of the Kuwaiti detainees to their families in Kuwait a priority. There is no question of that not being in line with an ethical foreign policy: there is nothing more ethical than ensuring that those detainees are returned to their families. We shall work towards that objective, which I am sure everyone shares.

  Export Promotion
  Mr. Martlew: What assessment he has made of the impact of the current financial turbulence in Asia on his Department's export promotion work; and if he will make a statement. [26445]
  Mr. Fatchett: It is too early to say what the full impact of the current financial turbulence in Asia will be on British companies doing business in the region. We shall continue to provide the full range of overseas trade services. We are confident that, with full implementation of the necessary policy reforms, Asia's impressive growth performance will continue over the medium term and that there will be excellent opportunities for British companies.
  Mr. Martlew: I thank my hon. Friend for that answer. Does he agree that this is a glitch in the Asian countries and that there will be continued growth in the region? What efforts have the British Government made to ensure that British exporters can take advantage of the situation in those Asian countries when their economies improve?
  Mr. Fatchett: We have urged the Asian countries that have been affected by the financial turbulence to take the measures urged on them by the International Monetary Fund. We feel that there is a need for greater transparency, accountability and openness in financial markets, and those countries are now taking heed of the programmes. We have worked hard alongside other countries to assist the IMF efforts.
  As to the long-term future of British exports, we continue to see the Asian market as viable and vibrant and, through our overseas trade services, we shall certainly assist all British companies.
  Mr. Ian Taylor: As one of those recovering from a hard night at the Brit awards, I urge the Minister to continue to work with the music industry to ensure that its exports to Asia remain as buoyant as they have been in recent years. Will he work with his right hon. and hon. Friends at the Department for Culture, Media and Sport and at the Department of Trade and Industry to ensure that intellectual property is protected? One of the greatest threats to our music industry exports is the thieving of intellectual property, which is still carried out by one or two leading Asian countries.
  Mr. Fatchett: It is good to see that the hon. Gentleman is dry after his night out at the Brit awards—I understand that, in terms of his politics, he is not always held in that regard by his colleagues.
  We recognise the important role that the music industry plays in British exports, and we have talked on many occasions about the successes of British groups around the world. Britain's cultural exports now account for about £10 billion a year. We shall certainly continue to promote them, as they are important to the image and the long-term success of the British economy. I assure the hon. Gentleman that we understand the importance of British intellectual property rights and we shall continue to work hard to ensure that those rights are guaranteed.

  Foreign and Security Issues
  Mr. Coaker: When he last met his European Union counterparts to discuss common foreign and security issues. [26446]
  Mr. Doug Henderson: I met my counterparts at the General Affairs Council on 26 January.
  Mr. Coaker: Will my hon. Friend outline the progress that has been made by the EU Foreign Ministers in achieving a peace agreement in Bosnia? The area has gone out of the news recently, with attention understandably focused on Iraq, but the situation in Bosnia is none the less serious, and we must do all we can to bring about a speedy resolution.
  Mr. Henderson: I assure my hon. Friend that we are doing everything that we can to continue to press for settlement of the various issues in Bosnia. At the General Affairs Council on 26 January we took an initiative two weeks after President Dodic's new Government was elected in the Republika Srpska to give the country some assistance from council funds to enable it to reinforce its democracy. Specifically, we gave it 6 million ecu to help the payment of public servants, which is essential if a civic society is to be established.
  Mr. Colvin: Does the Minister agree that membership of the European Union carries with it a mutual security obligation, although no guarantee? Does he therefore agree that, for the countries of central and eastern Europe, enlargement of the EU is as important to their security as enlargement of NATO?
  Mr. Henderson: I think the hon. Gentleman recognises the importance of economic and social links. Regardless of any arrangements that they may make through NATO or any other organisation for their security, many of the

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  countries in central and eastern Europe recognise that full membership of the European Union brings economic and social stability, which provides security for their nations.

  Israel
  Mr. Eric Clarke: If he will make a statement on Israeli settlement expansion in the west bank. [26447]
  Mr. Robin Cook: The EU position on settlement building in the occupied territories is clear. It is both illegal under international law, and damaging to the peace process. The building of settlements pre-empts final status talks and destroys hard-won trust between Israelis and Palestinians.
  Mr. Clarke: Does my right hon. Friend agree that the situation there is critical and is inhibiting a peaceful settlement? I was delighted to hear this afternoon your previous statement on the matter, and I give you full support—
  Madam Speaker: Order. The hon. Gentleman must speak through the Chair. I think the Foreign Secretary has got the question—a very complimentary one, which I am sure he can answer.
  Mr. Cook: As I understand it, I have my hon. Friend's support, as well as his question. I fully share his concern on the matter.
  Two issues of great concern to the Palestinian people arise from the Ras al-Amud development—first, the illegal continuing occupation and building of settlements on territory occupied by military force; and, secondly, the longer-term implications for Jerusalem, as it appears to be part of a strategy to make sure that Jerusalem does not continue to be a mixed city with a division between the two peoples there. For those reasons it is very important, if Israel wants the peace process to proceed, that it halts that particular expansion and refrains from all further settlement development.
  Mr. Nicholas Winterton: There is no doubt that the expansion of Israeli settlements on the west bank and elsewhere is impeding the peace process in the middle east. Bearing in mind the exceptional relationship that exists between the Prime Minister of the United Kingdom and the President of the United States, and the fact that, through its funding of Israel, the United States is undoubtedly contributing to the expansion of the settlements, what action is the Foreign Secretary prepared to take to bring pressure on the Government of the United States to influence what is going on in Israel?
  Mr. Cook: I discuss the middle east peace process at least every second day with my opposite number in the
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  United States, the Secretary of State. I entirely and thoroughly endorse her call on the Government of Israel to take time out from settlement building. During Mr. Netanyahu's recent visit to the United States, President Clinton made perfectly clear the impatience of the United States at gestures that make it more difficult to take forward the peace process.
  The hon. Gentleman raises the very real financial and economic consequences of doing that. Israel has prospered well from the peace process and the extra investment that peace and stability attracted. Israel has more to lose than anyone else if that peace and stability now appear to be at risk.

  Iraq
  Mr. Savidge: What assessment he has made of the welfare of children in Iraq; and if he will make a statement. [26449]
  Mrs. Anne Campbell: What assessment he has made of the welfare of children in Iraq, and if he will make a statement. [26455]
  Mr. Fatchett: The children of Iraq have suffered enormously at the hands of a ruthless dictator who cares nothing for their welfare. Unlike Saddam Hussein, we are concerned for their plight. We have provided £94 million in aid to the people of Iraq since 1991, much of which has been specifically targeted towards projects for children. Our co-sponsorship of oil-for-food resolutions has ensured that food and medical supplies reach all Iraqi people. We welcome the recent recommendations of the Secretary-General that the oil-for-food programme be expanded. That will also help to improve the situation for all vulnerable groups in Iraq.
  Mr. Savidge: Does my hon. Friend agree that, given the estimate that some 1 million under-fives are underfed, it is obscene that Saddam Hussein should have squandered some $1,000 million on building luxury palaces for himself, and it is dishonest that he should have sought to put the blame on United Nations sanctions?
  Mr. Fatchett: My hon. Friend makes a strong and valid point. In many of the comments that we hear about the current crisis, one of the grotesque ironies is the fact that Saddam Hussein has argued about access to what may be 40 presidential palaces. At a time when, because of his own actions, his own people have been suffering, a dictator has no moral right to indulge in luxury for himself and to build palaces in those numbers. Saddam Hussein's record speaks for itself. Again, my hon. Friend makes the point on why we have to ensure total access to the United Nations inspectors.

Iraq
3.30 pm
The Secretary of State for Foreign and Commonwealth Affairs (Mr. Robin Cook): Madam Speaker, at the end of last week I visited the Gulf and held meetings with leading figures in Saudi Arabia and Kuwait. With your permission, I should like to share with the House the three key points that they made. First, they have real fears about the threat that Saddam Hussein poses to their region. Secondly, like ourselves, they would prefer a diplomatic solution. But lastly, if Saddam does not accept the diplomatic initiatives that have been offered to him, as Prince Saud said, it is the Iraqi regime that will bear responsibility for the consequences. I agree with them on all three counts.
On the first point, there is no room for doubt over the scale of Saddam's chemical or biological capability, nor over his repeated attempts to conceal it. Last week, I published a paper setting out the statistics of Saddam's arsenal of weapons of mass destruction and documenting his persistent deception.
Saddam claimed that he had only 650 litres of anthrax. The figure turned out to be 8,400 litres. He continues to have the capability to manufacture enough extra anthrax to fill two more warheads every week. One such warhead could depopulate an entire city. Saddam also has programmes to produce at least three other germ agents.
Saddam claimed that his VX nerve gas programme had ended in failure. The truth turned out to be that he has the capability to produce 200 tonnes of the VX agent. One drop of it is enough to kill. Ten years ago next month, Saddam used chemical weapons to kill 5,000 Iraqi citizens at Halabja. He also used them against fellow Muslims in his war with Iran. He will not scruple to use them again.
As Richard Butler, the executive chairman of the United Nations Special Commission has noted, Saddam
"avoids answering questions and prevents UNSCOM from finding the answers."
In the past nine months he has delayed or denied access to four out of five sites where UNSCOM believed concealment was taking place.
The UN inspectors are our only guarantee that Saddam will not fulfil his ambition to acquire the weapons that could wipe out whole cities. However, that guarantee is of little value if they are not allowed to carry out effective inspections of the sites where they suspect chemical or biological weapons, or vital information on them, are concealed.
We also agree with our allies in the Gulf that it would be better if we could resolve this confrontation by diplomatic means. That is why Britain took the lead in proposing to the Security Council and our partners a new resolution condemning Saddam' s repeated obstruction of UNSCOM' s work. That approach has received widespread support among Council members. Japan has offered to co-sponsor the resolution.
We are also in close touch with the attempts at diplomatic mediation by Russia, France and the Arab League. Saddam has a history of backing down under pressure, and we welcome the recent signs that Iraq is ready to consider a diplomatic solution. However, I have to say to the House that, as yet, the proposals coming out of Baghdad fall well short of our requirement that any
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agreement should be convincing and should enable UNSCOM to resume its work without restrictions, without deadlines and without any no-go sites. While we want a peaceful solution, an outcome that left him able to develop chemical and biological weapons would make it only too likely that the peace of the region would be broken again by Saddam himself.
Our quarrel is with Saddam Hussein, not with the Iraqi people. We support the territorial integrity of Iraq and would like to see it rejoin the international community. Meanwhile, we are at the forefront of the diplomatic efforts to bring relief to the Iraqi people. We have led the negotiations at the UN to more than double the oil-for-food programme. We are the second largest donor of humanitarian aid to Iraq. There are no sanctions against food or medicine. It is Saddam, not the UN, who has decided to use his resources to construct presidential palaces for himself and to create weapons of mass destruction for his regional ambitions, rather than to purchase food and medicine for his people.
Finally, we agree with our major Gulf allies that, if diplomacy fails, the responsibility for the consequences will rest solely on Saddam. The best prospect for a diplomatic solution is to leave Saddam in no doubt of our resolve that, if he persists in his ambition to develop chemical and biological arsenals, we will not allow him to continue. He would be making a major miscalculation if he mistook our reluctance to use force for a lack of determination to use it if necessary. I hope that hon. Members on both sides of the House will support that clear and firm message to Saddam.
Mr. Michael Howard: The House will be grateful to the Foreign Secretary for his statement, and I hope that we shall have an opportunity to debate the situation in Iraq in full in the near future. As my right hon. Friend the Leader of the Opposition and I have consistently made clear, we support the Government in their efforts to ensure that Saddam Hussein respects the will of the UN and the world community. We agree that he cannot be allowed to flout Security Council resolutions—to which he himself agreed—with impunity. We agree that every diplomatic avenue must be pursued, but that if diplomacy fails, it would be right to contemplate military action.
We have also said consistently that the military action must have a clear objective. Last Monday in this House—and again on the radio this morning—the Foreign Secretary said that the objective of any military action was to ensure that the UNSCOM inspectors could complete their task. Last Friday in Washington—with the Prime Minister beside him—President Clinton said that the objective was to reduce Saddam's ability to use weapons of mass destruction against his neighbours. On Sunday, the Secretary of State for Defence was talking about the risks to the survival of Saddam Hussein and his regime. Is there not a danger that those different descriptions of the objectives will lead to uncertainty and confusion? Do we not owe it to the British service men and women whose lives may be put at risk to spell out a clear objective and to stick to it?
On the Security Council resolution to which the Foreign Secretary referred, could he tell us a little more about what it is intended to achieve? Is it the Government's position that resolution 687 provides

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sufficient authority for military action? What would be the effect on any such military action of the presence of Turkish troops in Iraq?
Finally, could the Foreign Secretary tell us a little more about the attempts that he has made, as President of the European Union Council of Foreign Ministers, to secure a consensus in the European Union on this question? Does not the complete absence of any such consensus illustrate yet again the emptiness of ambitions to develop a common foreign and defence policy in Europe?
Mr. Cook: On the right hon. and learned Gentleman's first point, we are well aware of the acute interest in this matter in the House and of the importance of ensuring that the House has adequate opportunities to debate these issues. I am consulting the Leader of the House and the usual channels about what might be an appropriate day for such a debate.
The right hon. and learned Gentleman is perfectly correct to draw attention to the fact that Saddam Hussein agreed to the UNSCOM regime, and accepted the inspection provided for in those resolutions. It was part of the ceasefire agreement to which he signed up. To take one of the right hon. and learned Gentleman's later points, there is therefore adequate authority already in that ceasefire agreement and in those resolutions.
It is nevertheless very important that we demonstrate that it is the international community that condemns Saddam Hussein's repeated violation of those resolutions. It is therefore important that the Security Council, on behalf of the international community, registers its criticism and rejection of Saddam Hussein's behaviour, and calls on him to abandon his plans to develop chemical and biological arsenals.
I see no conflict between what I have said and what the right hon. and learned Gentleman quotes from the Prime Minister. The objective is, indeed, to achieve compliance with the Security Council resolutions and to deny Saddam Hussein his ambition to develop weapons of mass destruction. Much the most effective way of doing that would be for the UNSCOM regime to be allowed to return to work. To increase the pressure for that to happen, we have made it perfectly plain that we have the resolve, if necessary, to use military force. If we cannot achieve an agreement by which UNSCOM can effectively hinder Saddam from developing chemical and biological weapons, military force will be applied to ensure that what UNSCOM inspectors cannot achieve can be achieved by direct action, so that Saddam is not left with arsenals of terror with which he could then seek to bully his neighbours.
I regret that the right hon. and learned Gentleman, at a time of immense international crisis, chose to make his own point about European policy. For the record, I have to say that he is behind the times. We are in close and continuous contact with the Government of France, and only this weekend Chancellor Kohl made it perfectly clear that he is willing to back and support us.
Mr. Donald Anderson: May I avoid the textual analysis and the anti-European swipe by the right hon. Learned Member for Folkestone Hythe (Mr. Howard) and deal with the question of weapons inspectors? Clearly, the only real guarantee of the implementation of Security Council resolution 687 is
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effective and competent weapons inspectors. We cannot allow Saddam Hussein to pack the jury by picking and choosing whom he wants in that team. Nevertheless, is it not important to show our reasonableness by responding to the appeals of many other countries and trying to ensure a greater spread of nationalities among those inspectors?
Mr. Cook: The present teams cover a large number of countries. Indeed, the last team to which Saddam Hussein took particular exception consisted of 44 inspectors from 17 different countries. It is wrong to suggest that a team containing members from 17 UN countries is dominated by one or two countries. We would welcome additional inspectors from other countries if they chose to take part in the exercise, if only because Britain pays for its own inspectors and therefore carries a share of the direct financial burden of the exercise. Inspectors must be effective, knowledgeable and capable of communicating in the common language of UNSCOM, which is English. We have no difficulty constructing an UNSCOM-plus, but we shall not settle for any outcome that gives us an UNSCOM-minus.
Mr. Menzies Campbell: I commend the terms of the Secretary of State's statement, which was balanced, firm and inherently logical. When he was making it, did it occur to him that it is symptomatic of Saddam Hussein's deception and obstructionism that, seven years after the end of the Gulf war, he has not yet fulfilled the terms and conditions of the peace settlement that he undertook? Had he done so, the condition of the children in his country might have been much improved. The Secretary-General of the United Nations, Mr. Kofi Annan, says that the parties must not be purist in their attitude, and must be willing to be flexible. Could that approach be adopted, so long as it was applied to the practicalities of the implementation of the resolutions, and not to the principle?
Mr. Cook: I wholly agree with the hon. and learned Gentleman that it is remarkable, and entirely down to Saddam' s behaviour, that, seven years after the ceasefire, we are still debating whether he will comply with the terms of the ceasefire. Nobody at the time when the sanctions were first imposed foresaw that we would still be here seven years later. The only reason why we are here seven years later is that Saddam persistently attempts to obstruct, to conceal and to prevent the UNSCOM inspectors from going about their job.
It is important that we make it plain to the world and to the Iraqi people that, if Saddam Hussein complies with the terms of the ceasefire, and if he abandons his plans to develop weapons of mass destruction, sanctions can be lifted and the people of Iraq can return to their normal life.
As to flexibility, of course we are willing to consider any creative proposal that would help us to achieve a diplomatic solution. But we are absolutely resolute in our belief that there is no point in accepting flexibility if it means that UNSCOM cannot carry out effective inspections. The objective of the exercise is to ensure that we find and dismantle those weapons. Any flexibility that prevents us from doing that leaves us with an agreement that is not worth having.
Mr. Tony Benn: Is the Secretary of State aware that the most obvious gap in his strategy is that no diplomatic efforts have been made by the United States

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Government or the British Government to send Ministers to Baghdad, as many other countries have done? The impression is created that they are only playing for time to build up the military force for the strike that has already been decided.
Is the Secretary of State further aware that articles 41 and 42 of the United Nations charter make it clear that military action may be authorised only by the Security Council? If action were taken by Britain and America, it would be illegal in international law, and would undermine the authority of the United Nations. The moral responsibility for the deaths of civilians that could follow would rest with those who took that decision. For that reason, it would not be possible for those who believe in the rule of law and in the United Nations to support the military action that, in the view of the House, the Secretary of State clearly intends to take.
Mr. Cook: There is no question of our merely playing for time, nor has any decision been taken that force will be used or will be used on any specific date. It is not a play: we are trying very hard to increase the pressure on Saddam Hussein to ensure that he responds to the many diplomatic overtures that are being made, perhaps by people who are more likely to be heard in Baghdad than me or my United States counterpart.
It is a bit rich to complain that the United States and the United Kingdom are undermining the authority of the United Nations. Saddam Hussein plainly demonstrates daily his contempt for the United Nations, for the resolutions that it has passed and for the agreement that he entered into with the UN. Britain is in the lead in New York in trying to obtain agreement on a text that makes that quite clear. If my right hon. Friend wishes to follow through the logic of his position, he should condemn Saddam Hussein, not the British or American Governments.
Mr. Tom King: If the increased obstruction by Saddam Hussein in recent months may owe something to his perception of divisions within the Security Council, a lack of resolution there and, perhaps, divided views among our Arab friends, will the Foreign Secretary accept that I consider his efforts in the Arab countries to be commendable, and believe that they need to be reinforced? Does he also accept that, if we are to ensure that Saddam Hussein understands that the United Nations is determined in its position, it is essential for other members of the Security Council—senior and permanent members—to give clear backing to the position of the United States and the United Kingdom? The Foreign Secretary will recall that, on the earlier occasion, France was somewhat slow in reaching that position. I hope that he will succeed in his efforts to ensure that it speaks very clearly on this occasion, and that the Security Council has a united voice.
Mr. Cook: I am grateful to the right hon. Gentleman for his observation about our efforts in the Gulf.
The Governments of the Gulf countries fully understand the nature of Saddam Hussein. Riyadh, after all, had Scud missiles delivered on it during the Gulf war. Had those missiles contained anthrax, Riyadh would be uninhabitable to this day. Kuwait suffered
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invasion and looting, and 600 of its citizens were taken away by Saddam Hussein with his retreating army. To this day, seven years later, we have knowledge of only three of those 600; none has returned to Kuwait. The Governments of those countries therefore fully understand the importance of not leaving Saddam in possession of weapons of mass destruction.
I agree that it is desirable for us to demonstrate unity among the permanent members of the Security Council. Unfortunately, it was the appearance of disunity in October that sparked off the present confrontation, because it encouraged Saddam Hussein to be bolder. I hope that the Security Council resolution will give the clear message that members of the Security Council are unanimous in condemning Saddam' s activities.
Mr. Gerald Kaufman: Is my right hon. Friend aware that the military action taken in 1991 to enforce United Nations Security Council resolutions was authorised not only by the Security Council, but—in relation to British participation—by an overwhelming vote in the House of Commons? Is he further aware that, if another such vote took place in the House, the result would be at least as overwhelming as it was then?
May I take up the question put by the hon. and learned Member for North-East Fife (Mr. Campbell)? Does my right hon. Friend recollect that, in 1991, military action was brought to an end on the basis of an undertaking by the Government of Iraq to comply fully with the resolutions of the United Nations Security Council? From that day to this, Iraq has not complied fully, or anywhere near fully, with those resolutions.
Although it is welcome that the League of Arab States, along with Russia and other countries, is attempting to facilitate a settlement by diplomatic means and not by force, will my right hon. Friend assure the House that there can be no acceptance of attempts to broker a deal based on concessions by the Security Council, or on the lifting of Security Council resolutions? Will he reaffirm that total compliance by Iraq with Security Council resolutions is not negotiable?
Mr. Cook: I am happy to give my right hon. Friend that assurance. The way in which Saddam and the Iraqi Government can obtain the lifting of the sanctions imposed by the resolutions is very simple: it is to comply with those resolutions, and to abandon their weapons of mass destruction. That is something that Saddam could have done at any time in the past seven years.
Nor can we accept the current demand by the Iraqi regime for eight presidential sites to be designated no-go areas for the inspectors. It is important for the House to understand that we are not simply talking about some kind of historical heritage palace; one of the sites is understood to be as big as Paris. We cannot allow such major loopholes in the inspection regime.
Mr. John Major: Is the Foreign Secretary aware that, in dealing with Saddam Hussein, he is dealing with a psychopath without conscience, who has repeatedly pushed the international community to the limits of its tolerance? Is the right hon. Gentleman further aware that, although diplomacy must be given the chance of success, there must be no concessions to this man and

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that, if it is necessary to use military action, first, the right hon. Gentleman will deserve the support of Opposition Members—and I hope that he will get it—and, secondly, he needs to take action that will not just be successful in the short term, but limit Saddam' s ability to play these games with the international community again in future? If that required the difficult decision to target specifically the Republican Guard, which sustains his evil regime in his own country and which has been his shield thus far against the rest of the world, that would again deserve the support of the House.
Mr. Cook: The right hon. Gentleman speaks with experience, and I am grateful for his support. I wish that the nature of the regime with which we are dealing were better understood. It might be helpful to mention that, in the past two months, Iraq has cleansed its prisons by executing every prisoner who had been sentenced to more than 15 years: in that time, 1,200 prisoners have been shot in prison courtyards in Iraq. That is the nature of the regime with which we are dealing.
The right hon. Gentleman will understand if I do not respond on any specific targeting plans, but Saddam does keep himself in power through fear and force. He should be under no illusion that, if military force is required on this occasion, the military power that keeps him in power will be hit hard.
Mr. Tam Dalyell: Does the House have the clear, unambiguous undertaking that, before military action is taken, we will return to the Security Council of the United Nations for its clear, unambiguous endorsement of that military action?
Mr. Cook: A large number of diplomats in the Foreign Office have been working towards precisely that objective for several days. We hope to table the resolution in New York this week and I hope that the resolution will gain the support of the Security Council, so I certainly give my hon. Friend that assurance.
Mr. Michael Colvin: During the visits to the Gulf by the Foreign Secretary and the Minister of State, Foreign and Commonwealth Office, the hon. Member for Leeds, Central (Mr. Fatchett), was any contact made with the Gulf Co-operation Council to find out whether economic sanctions against Saddam Hussein could be strengthened, and whether greater unity among Arab states could be achieved, which is always difficult to do?
Mr. Cook: We have explored the possibility of having a meeting with the Gulf Co-operation Council, to be attended by myself and Madeleine Albright. In practice, there have been difficulties in getting such a meeting together. However, by the end of this week, every member state in the Gulf will have been visited by myself or by a Minister of State from the Foreign Office or from the Ministry of Defence. We are rightly making a sustained effort to ensure that those Governments understand our position and support it.
Mr. George Galloway: Does the Foreign Secretary agree that far more weapons of mass destruction have been destroyed by UNSCOM inspectors over the past seven years in Iraq than were destroyed in the pulverising of Iraq by air power and land forces in the
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last Gulf war? Will he say how unleashing another Gulf war, and dropping tens of thousands of tonnes of high explosives on the Iraqis, is likely to convince them to allow those UNSCOM inspectors back in, to continue their important work?
Does the Foreign Secretary realise that many Labour Members are extremely uncomfortable at some of the militarist rhetoric that we hear from the Treasury Bench, outstormin' Norman Schwarzkopf and General Sir Peter de la Billiere, both of whom have expressed extreme scepticism about military action? Has the Foreign Secretary had time to read the letter in The Times this morning from Field Marshal Sir John Stanier, who says:
"Perhaps if we attempted to improve the lot of Saddam Hussein's people by offering a reduction in sanctions in exchange for evidence of his abandonment of weapons of mass destruction, a more realistic result might be achieved"?
Madam Speaker: Order. This is still Question Time, when we do not have quotations. I remind the House that, although this is a serious matter, these questions are much too long. Hon. Members are standing to be called, and I hope that they will come to the point. Will the hon. Member for Glasgow, Kelvin (Mr. Galloway) not quote because it is Question Time and we do not have quotations, but we have paraphrases?
Mr. Galloway: Thank you, Madam Speaker. You have my sincere apologies. The field marshal knows much more about military affairs than some of the green-room generals who have been commenting in the media during the past few days. His words should be given appropriate weight, and I wonder what my right hon. Friend has to say about them.
Mr. Cook: I have sought throughout my statement to maintain a calm and measured tone. I do not think that anyone could fairly accuse it of being militarist rhetoric. We wish, if possible, to resolve the matter through diplomatic means. If we cannot, the obstacle is Saddam himself and not anyone at the Dispatch Box. On my hon. Friend's concluding point, I agree up to a point with the letter from which he quoted, although I have not had the opportunity to read it all. We want sanctions to be lifted from the Iraqi people and for them to be able to resume normal life.
The way to achieve that is perfectly plain. It is for Saddam Hussein to comply with what he himself agreed to at the time of the ceasefire. At present, an exercise is being conducted between international experts and representatives of the Iraqi Government on the technical evaluation of what has been achieved so far by UNSCOM and what has yet to be done before we can say that all the programmes have been dismantled. That was offered to the Iraqi regime as a means of meeting its desire to understand what it needs to do to have the sanctions lifted. The Iraqis now understand that, and I hope that they will comply with it.
Mr. Crispin Blunt: Yesterday the Secretary of State for Defence told me that the political objectives for any possible military action would be the enforcement of the UN resolutions. Does the Foreign Secretary accept that, short of a land invasion of Iraq, it is frankly impossible to enforce the resolutions, and that, if we are forced into military action, political targets such as the

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destruction of the Republican Guard and the sites to which the inspectors have been denied access are the proper political objectives, which will command political support in the country and enable military success to be identified?
Mr. Cook: Again, the hon. Gentleman would not expect me to specify which sites we might be considering targeting. However, much can be achieved that does not involve military action on the ground. We shall continue to make sure that, given that Saddam understands that there is the possibility of military force and the real probability that, if used, military force would be of a substantial character, under that pressure, he may yet respond to the deadline and back down, as he has in the past. We are quite clear that the world cannot back down in the face of Saddam Hussein's threat.
Mr. Dennis Skinner: If, after the military strike has taken place, the evil dictator Saddam is still in situ, will it be regarded as a victory?
Mr. Cook: The objective of any military strike would be to ensure compliance with the Security Council resolutions or, in default of that compliance, through military action the reduction of the chemical and biological weapons that Saddam is preventing the UNSCOM inspectors from achieving. If we succeeded in removing a large part of those arsenals and the equipment and capabilities that produce them, I would regard that as having secured an objective of military action. However, it is not an issue in which anyone is looking for victory. Everyone is looking to make sure that the will of the international community is enforced, because, if that will is broken by Saddam Hussein, it will be of no value in any future confrontation with any future dictator.
Mr. Nicholas Soames: Does the Foreign Secretary agree, nevertheless, that the response of the European Union has been disappointingly incoherent and ineffective? Does he further agree that, at the very least, the Foreign Affairs Council should reach a unanimous conclusion that Saddam Hussein must be obliged to honour his obligations to the UN resolutions?
Will the right hon. Gentleman assure the House, even while wholly agreeing with the words of my right hon. Friend the Member for Huntingdon (Mr. Major), that, before a single missile or bomb is launched against Iraq, he will go to Iraq as head of the Foreign Affairs Council to tell the Iraqi regime the views of 15 countries and 370 million people, all of whom demand that Saddam Hussein be obliged to honour his obligations?
Mr. Cook: I would have no difficulty in obtaining agreement from all my Foreign Affairs Council counterparts that Saddam Hussein must comply with the UN resolutions. However, I counsel the hon. Gentleman not to go too far down the road of turning this into a European Union issue. We act at the UN not as the President of the European Union but as the representative of Britain. In case of any military action, we act on our own national initiative under UN authority. We would not welcome—as I doubt many Conservative Members would welcome—an explicit European Union involvement in any decision on such military action.
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Currently, I am not encouraged to believe that any useful purpose would be served by my visiting Baghdad. Should circumstances change, we can examine the matter then.
Mr. David Winnick: I am sure that there is not a single Member in the House who does not hope, at least, that diplomacy will triumph in the end. However, has my right hon. Friend seen the latest survey of public opinion, published today, showing that a clear, substantial majority in Britain support military action if it is required? It is the same type of support that was demonstrated when we had to fight past wars of aggression.
In view of the propaganda not only in the United Kingdom but particularly abroad, will the British and American Governments and the allies do their utmost to nail the malicious, poisonous lie—which it is—that Britain and the United States and other countries are engaged in warmongering? The full responsibility for the crisis lies with the criminal regime in Iraq: it lies with Saddam Hussein. Those who put responsibility for war and loss of lives on the allies are telling a lie, and they should be told so, whether they are in the House of Commons or outside.
Mr. Cook: I very much agree with my hon. Friend, and I also took encouragement from the results of that opinion poll. It is very important that we take every opportunity to get it across to our public why it is so important that Saddam is stripped of those weapons. That is why, last week, we put into the public domain a document that made a considerable impact on public opinion, listing the weapons that he possesses and the number of times that he has denied UNSCOM the right to inspect, to find those weapons. I am pleased to tell the House that a number of other countries are now considering producing a similar document of their own for their own domestic audience.
Mr. Jonathan Sayeed: Chemical, biological and nerve agents are not targeted weapons of war, but weapons of mass terror. As such, they do not require missiles to be delivered; a garage full of trucks will do equally as well. That being the case, and because an air war is unlikely to take out either the means of delivery or all those weapons of mass terror, should not the twin objectives be, first, to get rid of as many of the weapons as possible, and, secondly, to encourage the overthrow of Saddam Hussein?
Mr. Cook: In the event of military force, we would of course seek to destroy as much of his capability in developing chemical or biological weapons as it was possible to do in such a strike. As for Saddam' s own future, it is important that we keep ourselves very clearly fixed on the objective, which is to ensure that we degrade his capacity to retain those weapons of terror. If in the course of that strike his own military power was badly hit, his own capacity to remain in office might well be undermined. I hope that that is an issue on which he will reflect carefully in the days ahead, and that he will realise that it is in his interests as much as anyone else's that he should come to a diplomatic solution.
Mr. Bernie Grant: May I say to my right hon. Friend that the question is not whether Saddam

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Hussein is an evil dictator—that has been proven—but how we shall deal with him? My right hon. Friend must have heard that King Hussein of Jordan, Kofi Annan—the Secretary-General of the United Nations—and, recently, Nelson Mandela himself have said that there should be a diplomatic and not a military solution. President Mandela said that America should not be involved in regional conflicts, and that America is not the policeman of the world.
If my right hon. Friend is—as, today, he again claimed in the House—speaking on behalf of the world community, will he put the question of military action to the General Assembly of the United Nations, which is a much more representative body than the Security Council? I assure him that, if he were to do so, he would find that he does not have a majority, and is therefore not speaking for the world community. I wish that he would say that he is speaking for certain vested interests and not for the world community.
Mr. Cook: I robustly resist the idea that I am speaking for any vested interest in this matter. Britain has an interest in ensuring that the world regime of international law and international resolution of disputes is upheld. In pursuing that interest, we are acting not in any particular British vested interest but as a responsible and leading member of the world community.
Yes, the Security Council contains five permanent members; it also contains 10 non-permanent members that are elected by the General Assembly of the United Nations. They are deliberately and quite properly balanced by the General Assembly. They include countries from the third world and from each hemisphere. In our consultation with those 10 non-permanent members, we are getting overwhelming support for our resolution.
Mr. John Wilkinson: Should not Saddam Hussein be fully aware of the awesome, coercive power of allied air power? Could not at least his generals comprehend its potential? At the start of the Gulf war, whole Iraqi formations were obliterated by the allied air forces, but since then, they have acquired further precision munitions and sea-borne cruise missiles of great accuracy. If the UK were to back down, would not American opinion take an extremely jaundiced view of our reliability as a security partner in Bosnia and other areas of mutual security interest?
Mr. Cook: In response to the hon. Gentleman's last point, we have come to the view that we have and are pursuing the policy that we are, first, because we wish to ensure stability in the Gulf and that that is not undermined by Saddam Hussein and his weapons of mass terror, and, secondly, because as a permanent member of the UN we have a particular responsibility to uphold such stability. The hon. Gentleman is right to say that, at present, we are seeing an excellent example of close co-operation between the two Atlantic powers, but that is not why we are taking this action. We have come to the conclusion for our own reasons and on the balance of policy that, on this, we are right to ensure a resolute stand against Saddam Hussein.
I echo the hon. Gentleman's point that weapons have moved on since the Gulf war. Saddam Hussein should not be under any illusion about what might happen if military
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force were used. That is why, when I was in Kuwait, I took the opportunity extensively to make statements on television stations that we know are beamed into Iraq and received in Baghdad.
Mr. Terry Davis: Has my right hon. Friend considered the possibility that both Saddam Hussein and President Clinton, for different reasons, need a war?
Mr. Cook: It is not the case that anybody needs a war. Saddam would be badly wounded, hurt and undermined in his power base if there were a military strike. Madeleine Albright and I have repeatedly explored all possible ways in which we can achieve a diplomatic solution. I understand the deep concern of hon. Members who are reluctant to see military action. However, if they want to avoid military action, it would be helpful if they outlined the alternative course of action that would be open to us if Saddam failed to respond to diplomatic initiatives.
Rev. Martin Smyth: The question of sanctions has been raised constantly, yet we all know that they have not worked in the past and cannot work at present. Does the Foreign Secretary agree that the greatest help that Saddam has been getting is prevarication among international spokesmen, who give him credibility when he is acting incredibly? If people criticise the United States of America and the United Kingdom for their roles in the UN, they should stop asking us to bear the other burdens of the world. Will I cause consternation in the House if I suggest that those who have been holding back from supporting the concept of pressure on Saddam should be reminded that they, with Saddam, will share the guilt when innocent lives are lost?
Mr. Cook: I put it to the hon. Gentleman that many hon. Members have genuine concerns. One of our strengths is that, unlike Iraq, we have a constitution that allows those concerns to be expressed. If Saddam had allowed 1 per cent. of the freedom that we claim for ourselves in Britain, he might well have been flung out of power by the Iraqi people.
In the meantime, the Government will continue to be resolute. I hope that Saddam Hussein will by now have grasped the fact that the United States and the United Kingdom are resolute in seeing this through, and that we have very wide backing throughout the international community. Countries that may not necessarily join us in military action will most certainly join us in exerting diplomatic pressure and in condemning Saddam Hussein.
Mr. Dennis Canavan: Will my right hon. Friend rule out the possibility of a nuclear attack on Iraq?
Mr. Cook: Yes, I can rule that out straight away.
Mr. Andrew Robathan: The Foreign Secretary said that our quarrel is with Saddam Hussein and not the people of Iraq. It is therefore particularly unfortunate that we are about to punish the people of Iraq for the transgressions of the dictator. Seven years after the end of the Gulf war, does the right hon. Gentleman accept that there can be no lasting peace in the middle east while Saddam Hussein remains in power? In preparing for

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military action, which I fully support, will he take steps to drive a wedge between the people of Iraq and the dictator by indicting him through the Security Council for crimes against humanity?
Mr. Cook: The Government strongly support the case for an international criminal court. One of the reasons why, since the general election, we have come out robustly in support of such a court is precisely that it could provide an international legal framework before which a person such as Saddam Hussein could be arraigned. Regrettably, the court does not exist at present and will not exist in the time scale of the current confrontation. However, the confrontation reminds us why we need to strengthen the international law regime.
Ann Clwyd: Everyone must hope that the outcome of the present situation, whatever it is, will arise through diplomacy. May I support the call of the hon. Member for Blaby (Mr. Robathan)—I have made it myself many times in the Chamber—for indicting Saddam Hussein before an international criminal court? Such a court is, by all accounts, likely to be set up by the United Nations after its conference in Rome in June. Can we then call for his indictment, as he will remain a problem, whatever the outcome of the present situation? Indeed, he and his closest associates are the problem, and they should be brought before the court on charges of crimes against humanity, war crimes and crimes of genocide.
Mr. Cook: I assure my hon. Friend that we support Indict's campaign. As I said, if there was an international court before which we could bring Saddam Hussein, we would certainly now be trying to do so. My hon. Friend has a deep knowledge of the Iraqi situation; she is well aware of the immense suffering that has been imposed on the Iraqi people not by the international community, but by the direct oppression of Saddam. One of the reasons why he maintains his military force is that he has been known to amputate the hands of anyone who deserts his army. This is the behaviour of someone who has created immense suffering, hardship and grief for his own people, not to mention the other countries of the region.
Several hon. Members rose—
Madam Speaker: Thank you. We must now move on.
Mr. Benn: On a point of order, Madam Speaker. Last week, I asked about the possibility of a debate. Time is passing and we are approaching the moment when the option of military force may be taken. Neither the Government nor the Opposition have chosen to table a motion that would allow the House to debate the matter and, if necessary, vote on it. I wonder whether you could use your good offices to ensure that the House is a place not just for discussion, but where real decisions may be made.
Madam Speaker: I recollect that the Foreign Secretary, in answering a question today, informed the House that he was in negotiations with the Leader of the House about a debate on this matter. I shall certainly keep that, and the right hon. Gentleman's point of order, in mind.

War Memorials Preservation
4.19 pm
Mr. David Maclean: I beg to move,
That leave be given to bring in a Bill to provide for the preservation of war memorials; to ensure their proper transfer to a suitable location if their present site is redeveloped; to amend the War Memorials (Local Authorities' Powers) Act 1923; and for connected purposes.
The immortal words of Laurence Binyon stir most of us:

"They shall grow not old, as we that are left grow old:

Age shall not weary them, nor the years condemn.

At the going down of the sun and in the morning

We will remember them."

Yes, we will remember them and, for the most part, we do. There is a new interest in remembrance. The undoubted success of the Royal British Legion's 11.11.11 campaign shows that people of all ages appreciate how important it is never to forget. Young people too, who could never be accused of wanting to glorify war, realise that remembrance of past suffering is the prerequisite to the avoidance of future conflict.
At remembrance services, we not only honour the dead who made the supreme sacrifice, but renew our determination never to let it happen again if at all possible. Those services take place at thousands of well-kept memorials up and down this land. One might be forgiven for concluding that there is no problem, but there is indeed a problem or, more correctly, a few problems.
First, we do not know exactly how many war memorials we have in the United Kingdom or where they all are. The charity Friends of War Memorials estimates that there are at least 50,000 and possibly up to 70,000. The national inventory of war memorials, started by Alan Borg, director general of the imperial war museum, is doing excellent work, but has recorded only about 26,000 of them so far. That inventory is vital. We cannot ultimately prevent a memorial from being lost, if we do not know of its existence in the first place.
For the most part, the vast majority of our war memorials are in good repair, well tended and not vandalised, and the names of those honoured are legible. However, not all are thus. Friends of War Memorials has disturbing documented evidence that hundreds of war memorials are in a state of disrepair or neglect. I have a file of photographs here, taken across the country, showing memorials broken, damaged or so eroded that the names have disappeared, while others tucked away at the back of a municipal park or garden are so overgrown with weeds that they are practically invisible.
However, there is an even worse problem. Some memorials no longer exist at all. When we see the awe-inspiring solidity of the Cenotaph, or the other great memorials to the Royal Navy, the Army and the Air Force around the country, or the marble, stone and bronze monuments commemorating the fallen in all our towns, villages and parishes, it is difficult to accept that some memorials are disappearing for ever, or are being disposed of inappropriately.
The problem is not those on public land or in civic ownership, but largely those in churches that have become redundant. In the past few years, hundreds of churches

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have closed down and in many cases, the war memorials, rolls of honour and commemorative plaques have ended up in scrap yards or architectural salvage shops. In October last year, Mr. Ian Davidson, the founder of Friends of War Memorials, purchased for £35 from an antique dealer in Surrey a wooden memorial roll of honour containing the names of 109 war dead. That is just £3 per name. That memorial came from a redundant church, and he is searching for a suitable site for its rededication.
How has that appalling state of affairs come about? As a result of the sheer scale of losses in the first world war, every community was affected and wanted to build a war memorial. Of course, there was no legislation to control the construction and as a result, Britain now has a great wealth of memorials, some of outstanding architectural design and others much more plain, but all worth preserving. Thus we have memorials in churches, outside churches, in public parks, private gardens and cemeteries, in village halls, town halls and community centres, police headquarters and scout huts, hospitals, railway stations and private company offices, in small Government buildings in the provinces and great Departments of state in Whitehall and, of course, here in the royal palace of Westminster itself.
In most cases, no arrangements were made for future maintenance or upkeep when the memorials were built. It was just assumed that they would be maintained and there was no question of them being disposed of, just as no one thought in the 1920s that churches would become redundant one day. The first legislation to be passed was the War Memorials (Local Authorities' Powers) Act 1923, which gave power to local authorities, including parish councils, to spend reasonable sums on
"the maintenance, repair and protection of any war memorial within their district".
However, it is a power, not a duty.
There is also legislation relating to the disposal of memorials in disused churches, but that is primarily concerned with burial grounds, the proper reinterment of human remains and the appropriate disposal of any accompanying monuments or memorials. The legislation is weak on memorials to people who are not buried in church grounds and, of course, it does not apply to all those buildings which do not have burial grounds attached. That is why so many memorials are being destroyed or sold off, or turning up in scrap yards. The legislation even states that memorials shall be broken or defaced before being otherwise disposed of. It is obvious to me that the legislation is intended to deal with individual tombstones in old cemeteries and that it was never envisaged that war memorials should be disposed of in that way.
The House will agree that there are loopholes in our existing law and that there is a problem that is growing daily. I am not asking the Government to take responsibility and therefore pay for any action, because that would be wrong in principle. The Government should be responsible only for national war memorials and those on Crown land; it cannot be right to make them responsible for memorials in churches, village halls, community centres and the thousands of private buildings and places that currently house war memorials. Nor should we make local authorities automatically responsible, as that might impose a large new financial
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burden. It is only where there are no alternative carers for memorials that local authorities might be given a duty to be the carer of last resort. However, I can envisage some possible solutions, which I want to examine carefully with some Government assistance. My only request to the Minister today is that she permits me to seek advice from the relevant officials in the Home Office who are knowledgeable on these matters.
The suggestion has already been made that all war memorials should be treated as listed monuments and so be made subject to the same planning controls as apply to all listed buildings and ancient monuments. That was the subject of an early-day motion tabled by my hon. Friend the Member for Gosport (Mr. Viggers), which attracted support from hon. Members on both sides of the House. That idea has considerable merit and we need to explore what changes to the legislation would be necessary and to consider whether there might be unforeseen consequences. There are many memorials that are lovingly tended by veterans associations, regimental trusts and existing military units. Any solution to protect the vulnerable or neglected war memorials should not impinge on the excellent work being done by those who already care for so many of our memorials.
We also need to explore new ways in which to raise finance to ensure that all war memorials are maintained in pristine condition, irrespective of who owns them. Memorials must be maintained, not only because to do otherwise is grossly offensive to the memories of those who made the supreme sacrifice so that we could live in freedom and because the memorials are a precious part of our national heritage, but because destruction and neglect of memorials sends the wrong signal to our younger generations—that war and the death it brings are of little importance.
When the veterans form up in Whitehall on Remembrance Sunday, television usually shows us scenes from impeccably kept Commonwealth war graves from around the world: mile upon mile of white crosses or simple stones bearing the names of the fallen, which are as carefully tended today as they were 50 or 70 years ago. When we see that stark picture of the destruction that war brings, do we not strengthen our resolve to prevent that in future?
I have with me here another stark picture, of a large brass plate containing the names of 35 men from the Southampton area who died in the great war. It is boldly inscribed:
"Their name liveth for evermore",
but it was found a few months ago lying tarnished and rusty in a scrap yard. It has been restored, and the finder is now searching for a suitable home for it.
If we can so easily betray the memory of past generations by throwing their memorial into a scrap yard, why should today's generation have any confidence that they too would not be betrayed? As the right hon. Member for Berwick-upon-Tweed (Mr. Beith) wrote in the Royal British Legion's "Golden Book of Remembrance":
"As those who are left grow old, it falls to those who have derived the great benefits of peace and freedom in succeeding generations to say of the fallen, 'We will remember them'."
My Bill is a step towards ensuring that in all cases, their names will live for ever more.
Question put and agreed to.
Bill ordered to be brought in by Mr. David Maclean, Mr. A. J. Beith, Mr. Menzies Campbell, Mr. Frank Cook, Sir Peter Emery, Sir Geoffrey Johnson Smith, Mr. Barry Jones, Sir Peter Lloyd, Rev. Martin Smyth, Mr. Nicholas Soames and Mr. Peter Viggers.

WAR MEMORIALS PRESERVATION
Mr. David Maclean accordingly presented a Bill to provide for the preservation of war memorials; to ensure their proper transfer to a suitable location if their present site is redeveloped; to amend the War Memorials (Local Authorities' Powers) Act 1923; and for connected purposes: And the same was read the First time; and ordered to be read a Second time on Friday 24 April, and to be printed [Bill 120].

SCOTLAND BILL (PROGRAMME)
Motion made, and Question put forthwith, pursuant to Standing Order No. 82 (Business Committee),
That the further Report [9th February] from the Business Committee be now considered.—[Mr. Allen. ]
Question agreed to.
Report considered accordingly.
Resolved,
That this House doth agree with the Committee in its Resolution.—[Mr. Allen. ]
Following is the report of the Business Committee [9 February]:
That it had come to a further Resolution in respect of the Scotland Bill, which it had directed him to report to the House:
That the Resolution of the Committee reported to the House on 22nd January be varied so that—

(a) the third to eighth days allotted under the Order [13th January] to proceedings in Committee of the whole House shall be allotted in the manner shown in the Table set out below, and

(b) each part of the proceedings shall, if not previously brought to a conclusion, be brought to a conclusion (in accordance with the Order) at the time specified in the third column of the Table.

TABLE

Allotted day

Proceedings in Committee

Time for conclusion of proceedings

Third day

Clause 41

6.00 p.m.

Clauses 42 to 47

7.00 p.m.

Clauses 48 to 53

8.30 p.m.

Clauses 54 to 60

10.00 p.m.

Fourth day

Clause 61 (up to and including the word "determine" in subsection (2))

7.00 p.m.

Clause 61 (remaining proceedings)

Clause 62

8.45 p.m.

Clauses 63 to 68

10.00 p.m.

Fifth to eighth days

Remaining proceedings (according to time limits to be determined by a further report or further reports of the Business Committee)

10.00 p.m. on the eighth day

Orders of the Day

  Scotland Bill
  [3RD ALLOTTED DAY]
  Considered in Committee [Progress, 29 January].
  [MR. MICHAEL J. MARTIN in the Chair]

  Scotland Bill
    Clause 41

      THE SCOTTISH EXECUTIVE
      4.31 Pm
      Mr. Michael Ancram: I beg to move amendment No. 303, in page 18, leave out lines 7 and 8 and insert—
      '(1A) Any devolved Law Officer shall not be a member of the Scottish Executive'.
      The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin): With this, it will be convenient to discuss the following amendments: No. 274, in page 18, line 10, at end add—
      '(3) The Solicitor General for Scotland shall be the law officer to the Scottish Executive'.
      No. 10, in clause 45, page 19, line 24, at end insert—
      '(1A) The Lord Advocate and Solicitor General for Scotland shall be qualified as either

      (i) an advocate, or

      (ii) a solicitor under the Solicitors (Scotland) Act 1980.'.

      No. 314, in page 19, line 25, after 'Advocate', insert
      `or by an official or agent appointed by and responsible to him'.
      Clause 45 stand part.
      Government amendment No. 321.
      No. 289, in clause 59, page 25, line 6, after `Ministers', insert
      `or the Scottish Law Officers'.
      No. 290, in page 25, line 9, after 'Ministers', insert
      `or the Scottish Law Officers'.
      No. 11, in clause 82, page 37, line 40, at end insert—
      '(1A) The Advocate General for Scotland shall be qualified as either

      (i) an advocate, or

      (ii) a solicitor under the Solicitors (Scotland) Act 1980.'.

      No. 12, in page 38, line 5, after 'writing', add
      ',provided that the office shall not be vacant for a period of more than one month.'.
      Mr. Ancram: Amendment No. 303 is an important amendment which we are debating with several other amendments. Amendments Nos. 289 and 290 do not relate to the main purpose of my argument and I shall deal with them briefly by saying that they seek to ensure that provision for the transfer of functions, which we shall debate later in Committee, should apply to the Law Officers as much as to other Ministers of the Scottish Executive if the other amendments in my name fail. That would make sense in those circumstances.
      Mr. Tam Dalyell: The right hon. Gentleman mentioned Ministers of the Scottish Executive.

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      Does he include junior Ministers, because there is some confusion over whether they are included in the term "Ministers of the Scottish Executive"? That may be a pedantic point, but it arises from the Bill.
      Mr. Ancram: It is a good point and it will be relevant when we consider the functions of Ministers in other groups of amendments that we will discuss later today. The hon. Gentleman will have gathered from our amendments that we think that it is highly questionable whether there should be a plethora of Ministers in Scotland to do the job that is now being done by the Secretary of State for Scotland, two Ministers of State and three junior colleagues. However, I do not wish to steal the thunder of my hon. Friend the Member for Woodspring (Dr. Fox), who will move those amendments in due course. I merely wished to take amendments Nos. 289 and 290 out of the argument that I am making now, because it is right to concentrate on the matter in hand.
      Amendments Nos. 303 and 274 would mean that neither the Lord Advocate nor the Solicitor-General would be members of the Scottish Executive, and also that only the Solicitor General would be a Law Officer to the Executive. This is a matter of substantial importance to us. It has a legal aspect as well as a constitutional aspect, and it is important that we consider it carefully.
      In paragraph 4.8, the White Paper "Scotland's Parliament" accepted that there was something different about Law Officers and the Lord Advocate in particular, and said:
      "The traditional independence of the Lord Advocate as public prosecutor will be maintained."
      That independence really causes us concern in relation to the amendments before us and the Bill as it stands.
      The amendments seek to do two things. The first is to try to achieve a situation where the Law Officers are not part of the Scottish Executive. We believe especially that it is wrong in principle to devolve the office of Lord Advocate, because he is, as the White Paper says, an independent public prosecutor, and as such he must act at all times in the public interest of the whole United Kingdom, not the Scottish public interest alone.
      It is important to realise that the Lord Advocate, in whatever guise, will continue to be responsible for the prosecution of offences enacted by both Parliaments. Many crimes—such as those involving drugs, firearms and Customs and Excise matters—will be reserved matters on which the Lord Advocate will prosecute, and do not fall solely within the matters that will be in the control of the Scottish Parliament.
      Therefore, we believe that the role that the Lord Advocate will perform, having a United Kingdom dimension, is not recognised in the legislation as it stands and, indeed, would be precluded by clause 41(1)(c), which we seek to remove from the Bill, which states that the Scottish Executive shall also have as its members
      "the Lord Advocate and the Solicitor General for Scotland."
      Interestingly, in 1978, the importance of the United Kingdom dimension was recognised, and the position of Lord Advocate was not devolved for very much those reasons. I know that the hon. Member for Linlithgow (Mr. Dalyell) remembers some of the debates that took place at that time.
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      It may be useful to illustrate the point with hypothetical examples. There could be a case where a Westminster Member of Parliament from a Scottish constituency was to be prosecuted for electoral improprieties after devolution. [Interruption.] The Minister for Home Affairs and Devolution, Scottish Office smiles and laughs, as though he believes that it could never happen. I suspect that he might like to reconsider whether he is wise to so mock that example.
      Let us say that a procedural blunder occurs, the prosecution founders and the Member of Parliament is acquitted on a technicality. In those circumstances, no Member of Parliament or peer at Westminster would be able to call any Minister to account for that, although it would affect the membership of the House, because there remains no ministerial responsibility at Westminster for the Scottish prosecution service. We need to think very carefully about that.
      We might also consider the case of the Lockerbie bombing. The United Kingdom public interest would loom large in any prosecution that might take place in Scotland. If the case were ever to come to trial, evidence would be given by members of United Kingdom agencies such as the intelligence services and the forensic science services. I pose the question to the Minister: would it not be wrong in principle for a situation to be created whereby no accountability would be reserved to Westminster for the conduct of what might be one of the most prominent trials of all time?
      Mr. Dalyell: The Minister for Home Affairs and Devolution, Scottish Office knows—because he had to answer one of them—that I have initiated 14 Adjournment debates on Lockerbie. This is a very difficult hybrid question, and I hope that, when the Minister speaks, he will cast some reflection, in the light of his experience of answering one of the debates on Lockerbie, on how the problem is to be resolved. It is a very real one.
      Mr. Ancram: I am grateful to the hon. Gentleman because it is a good example, which he calls a hybrid situation. Such a situation could occur in other eventualities and, with all respect to the Minister, I do not think that the Bill covers these points sufficiently, so I hope that he will consider our amendments carefully.
      The reverse situation might occur also. Let us take the hypothetical case of an English citizen charged with putting drugs on board a train in London that is bound for Glasgow as part of a drugs cartel to supply drugs to Scotland. The Englishman could be arrested by the Scottish police and prosecuted in Scotland although he might, in the commission of the crime, never have set foot in Scotland. Those of us who have practised at the criminal Bar know that such situations can arise. His Member of Parliament, who would be an English Member of Parliament, would have no opportunity to question in the United Kingdom Parliament the Minister with responsibility for the case in which his constituent was involved. Once again, lack of accountability could create great unfairness in terms of the representation available to citizens. I shall give way to the hon. Lady.
      Dr. Lynda Clark: I would have more sympathy with the right hon. Gentleman's argument if he could say when the Lord Advocate was last a Member of the House of Commons.
      Mr. Ancram: At present, no Law Officer answers for the Scottish Law Officers in this place. However,

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      during my time in government, the Solicitor-General for Scotland was a Member of the House of Commons. Lord Fraser of Carmyllie was Solicitor-General in this place before he became Lord Advocate. Law Officer questions were separate from questions to the Scottish Office, which underlines the importance of making that distinction. I give way again to the hon. and learned Lady—I apologise for not remembering her full title.
      Dr. Clark: I am much obliged. It may be a figment of my imagination, but I think that a Law Officer was last a Member of the House of Commons in 1983.
      Mr. Ancram: I think that it was 1987. The hon. and learned Lady makes an important point. When considering our amendments to the Bill, we pondered whether it was right to insist that Law Officers be Members of the Scottish Parliament for those reasons. However, we resisted putting down such an amendment, as we thought that it might preclude those who might hold that office with distinction from being able to do so.
      Mr. Alex Salmond: In the 10 years between 1987 and 1997 when the Solicitor-General was not a Member of the House of Commons, did the right hon. Gentleman make any representations to his party or argue in this place that that was an unacceptable situation that should be changed?
      Mr. Ancram: I think that the hon. Gentleman misses my point. There was an acceptance that the Lord Advocate had a United Kingdom role. This part of the Bill categorises the Lord Advocate as a member of the Scottish Executive, who is therefore responsible within that Executive and not on a wider basis. I am making a serious point. If we are not careful, we shall create a situation whereby the necessary role of the Lord Advocate in terms of United Kingdom prosecutions could be compromised by the fact that he is a member of the Scottish Executive. I am surprised that hon. Members have difficulty with that. I believe that it is part of the tradition of the office of Lord Advocate that it should not only relate to Scotland, but have a wider perspective, which is important to Scottish law as well as to the office of Lord Advocate.
      Ms Roseanna Cunningham: The last time that we debated the matter in this place, we had a long and heated discussion about clause 23. In the debate, it became quite clear that we could require anyone to appear before Parliament and give evidence. That did not necessarily please several hon. Members, but it was stated that that would continue to be the case. Does that not cover the point about which the right hon. Gentleman has expressed concern?
      Mr. Ancram: With respect, I do not think that it covers the point—otherwise I would not have moved the amendment. We must ensure that the independence of the Lord Advocate is sustained as far as possible. I must concede that the Bill tries to do that; many clauses in the Bill seek to achieve that aim, but I do not think that there are enough.
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      The Lord Advocate's ability to act in a role that is beyond the powers that will not be reserved to this Parliament and therefore available to a Scottish Parliament is a second important point. There is a third key point to which I shall turn in a moment. However, I do not think that the Bill, as it stands, resolves the question.
      The Opposition question the need to have two Law Officers in the Scottish Parliament—whether they are members of the Executive or not. Therefore, our amendment seeks to ensure that the office of the Lord Advocate is not devolved, which would allow him to retain a wider role. The Solicitor-General for Scotland could be devolved and made answerable to the Scottish Parliament, which would have the added advantage of eliminating the so-called "Harry Lime" position, whereby a third man is suddenly introduced by the Bill.
      that third Law Officer would be a new animal—no one is quite certain what the Advocate General for Scotland will do. I believe that the simple procedure whereby the Lord Advocate is answerable to the United Kingdom Parliament and the Solicitor-General is answerable to the Scottish Parliament would resolve the issue without getting into the technicalities of creating a new position.
      Mr. James Wallace: Does the right hon. Gentleman not see a difficulty with the proposal, in that, if a Member of the Scottish Parliament wished to raise a question about a Scottish prosecution, he would not be able to tackle the person who was ultimately responsible—the Lord Advocate? The buck would stop with the Lord Advocate who would not be answerable to the Scottish Parliament regarding the overwhelming number of prosecutions compared with the one or two hypothetical exceptions that the right hon. Gentleman has suggested.
      4.45 pm
      Mr. Ancram: I appreciate that it would be nice for the Scottish Parliament to be able to call to account the person who is in charge of all prosecutions. However, it could call to account the Solicitor-General—that is nothing new. The hon. and learned Gentleman was a Member of Parliament when the Solicitor-General for Scotland used to sit in this place. I do not think that we argued then that that was second best. I make the point with some seriousness, as I know that it concerns members of the legal profession in Scotland. The matter was considered carefully in 1978, and the then Labour Government decided not to go down that path.
      Another effect of the amendment is to ensure something rather different: the devolved Law Officers will remain distinct from the Scottish Executive. That is not clear in clause 41(1)(c), which states that they would be members of that Executive. We are trying to create a situation that mirrors the current position, whereby the Crown Office and the Scottish Office are strictly separate entities—and are so described in any Government lists. They are not in the Cabinet and they are not Ministers outside the Cabinet; they are always declared separately. That is right and proper. This position is significant.

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      Clause 48(3) of the Bill states:
      "Statutory functions of the Scottish Ministers shall be exercisable by any member"—
      I stress that point—
      "of the Scottish Executive."
      If the Bill is left unamended, Scottish Law Officers will be included in the definition of Scottish Ministers. If Law Officers could exercise the functions of other Ministers—according to my reading of the Bill, it could not happen the other way around—it would create an extraordinary anomaly that could lead to conflicts of interest. On my reading of the Bill—I shall be interested to hear the Minister's comments—the Lord Advocate could grant planning permission, because that is a function of a member of the Executive. Therefore, the Lord Advocate would not be precluded from doing that.
      Through these amendments, we are trying to protect the position of Lord Advocate, which is not only historic, but extremely valuable in terms of the constitution of this country and the Scottish legal system. We believe that it is not sufficiently protected at present, either in terms of independence or in terms of distinction from the Executive. On that basis, we hope that the Government will consider our arguments seriously.
      Mr. Dalyell: Hon. Members have been asked to be succinct, so I shall limit my speech to two points. First, clause 41 defines the Scottish Executive. It is a matter of some importance to return to the question of junior Scottish Office Ministers. Will they be construed as being members of the Scottish Executive? What is their status? I do not think that the Bill makes that clear.
      Secondly, the right hon. Member for Devizes (Mr. Ancram) raised the example of Lockerbie. Surely it is where the criminal act has its effect that the courts and prosecution system would have jurisdiction. If that is a correct understanding of the Scottish Parliament's responsibility for a hybrid situation such as that, I should be grateful if it could be confirmed.
      Mr. Wallace: Before I speak to the amendments tabled by my hon. Friends and me, may I respond to some of the comments of the right hon. Member for Devizes (Mr. Ancram), who tried to address the issues and made some reasonable points.
      I pointed out in an intervention that the overwhelming majority—99 per cent. or more—of cases in respect of which the Lord Advocate will ultimately have the responsibility for bringing the prosecution will be matters that affect the constituents of those who will be in the Scottish Parliament. The right hon. Gentleman's reply was that, for a long time, we accepted a Solicitor-General coming to the House and answering questions, and that did not work too badly. Let us be honest: it was better than nothing, and nothing is what we have had since 1987.
      Although the right hon. Gentleman was not in Parliament at the time, it was a Conservative Government who took away the 10 or 15 minutes allocated at Question Time to the Law Officers' responsibilities. Several of us raised the matter on several occasions, and the balance was only latterly redressed in a small way by the provision that allowed the Lord Advocate, because he happens to be a Member of another place, to appear before the
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      Scottish Grand Committee. As I understand it, that is done only with his permission, because he is a Member of another place.
      In the case of the Scottish Parliament, the amendment that the Conservatives considered but decided not to table is not necessary, because under clause 26, if the Lord Advocate or the Solicitor-General is not a Member of the Parliament, he may still participate in the proceedings of the Parliament to the extent permitted by the Standing Orders. It will not be a question of whether the Lord Advocate deigns to appear; the standing orders will make the Law Officers part and parcel of the proceedings.
      Moreover, I understand that, in Standing Committees of this House, it is possible to require a Law Officer to be present, not necessarily when the Committee is dealing with criminal matters, but when advice on points of law on other matters is needed. That has not been possible in Scottish legislation since 1987, when Mr. Peter Fraser—now Lord Fraser—lost his seat. There has been no Scottish Law Officer in the House of Commons. The scheme for which the Bill provides offers considerable advantages.
      The right hon. Gentleman makes a fair and valid point—which those of us who have been brought up and trained in the Scottish legal tradition readily recognise and support—about the rigorous independence of the Lord Advocate when he fulfils his duties as the person who prosecutes in the Queen's name in Scotland. Specific provision is made for that in the Bill, which states:
      "Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person."
      That is set out in statutory form, and I support it.
      Amendment No. 314 expands that and makes it clear that any official or agent appointed by and responsible to the Lord Advocate—in the Crown Office, advocate-deputes and procurators fiscal—will also have that independence guaranteed to them by the provisions of the Bill. The Minister may respond that that is already implied. The Government have not been over-generous in accepting amendments. Perhaps they will accept this one, which sets out the position. It would guarantee that independence and put it on a statutory basis and beyond question at any future date.
      The Lord Advocate must be answerable to the Scottish Parliament, and he would not be answerable if he remained a Member of this place or the other place and a member of the United Kingdom Government.
      Let us forget all the fancy stuff about the Law Officers being totally independent. Although they are independent, and rightly so, and any Lord Advocate whom I have known has jealously guarded his independence with regard to the prosecution, nevertheless they have not been above partisanship in their other activities, and I make no complaint about that. They are there to help the Government to implement their policies and to give legal advice, and one would expect that they would generally be in step with the Government; but the idea that recent Lords Advocate have been above the political battle does not stand up. I do not criticise them for that. They have made no secret of it in some cases, and it is part of their job.
      If the Law Officers did not sit in the Scottish Parliament—if they were the creatures of Westminster—the Solicitor-General could answer questions, but there

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      would be no right of the Scottish Parliament to question the Lord Advocate. Although there has been no Law Officer in the House of Commons, the Law Officers are still ultimately responsible to the House of Commons and to another place. Technically, the Secretary of State answers questions on their behalf.
      As the hon. Member for Linlithgow (Mr. Dalyell) knows, if we had a Law Officer in this place, some of his Adjournment debates on Lockerbie would have been answered by a Law Officer, but they have had to be answered by a Minister—indeed, the Minister for Home Affairs and Devolution, Scottish Office has had to answer them—as a stand-in for the Law Officers. That would not be the case if the Lord Advocate was not a Member of the Scottish Parliament.
      The hon. Member for Perth (Ms Cunningham) rightly pointed out in the battles that we had over clause 23 that it would be possible for the House of Commons to call the Lord Advocate or the Solicitor-General if it was felt that he was not executing his duties or there were questions to be answered.
      Amendment No. 10 would require that the Lord Advocate and the Solicitor-General should be members of the Faculty of Advocates or a solicitor under the Solicitors (Scotland) Act 1980. That would ensure that those who hold such high office were suitably qualified.
      I am grateful to Mr. Michael Clancy of the Law Society of Scotland for giving me some of the historical background. The Lord Advocate has always been an advocate, as far back as anyone can trace. With regard to the Solicitor-General, the first appointment of a King's Solicitor dates to 1587, when a commission was granted to William McCartney,
      "one of the King's Clerks, writer and special agent".
      That might suggest that he was a solicitor rather than an advocate, but during the 17th century the office became the preserve of members of the Faculty of Advocates. In 1684 the King's Solicitor was authorised to prosecute with similar jurisdiction to that of the King's Advocate.
      In more recent times, during the first Labour Government, the Prime Minister, Mr. Ramsay MacDonald, attempted to have a Glasgow solicitor, Rosslyn Mitchell, appointed Lord Advocate, but after an encounter with the Lord President of the Court of Session, Ramsay MacDonald thought again and Mr. Mitchell was not appointed, as he had no rights of audience in the Court of Session.
      The position has been different since the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
      Mr. Dalyell: If the Mitchell case, to which the hon. and learned Gentleman rightly refers, were repeated today, would he agree to a solicitor of the distinction of Rosslyn Mitchell being appointed? Personally, I would.
      Mr. Wallace: Subject to what I am about to say, yes. My amendment would make provision for a solicitor to become Lord Advocate or Solicitor-General for Scotland—a solicitor under the Solicitors (Scotland) Act 1980. Of course it is now possible for solicitors to have rights of audience in the High Court, the Court of Session, the House of Lords and the Judicial Committee of the Privy Council.
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      I hope that the Minister will be minded to accept the amendment, which would build in a guarantee that whoever holds those high offices will be suitably legally qualified.
      Amendment No. 11 contains a similar requirement in relation to the Advocate General for Scotland and clause 82. It is perhaps even more important that the qualification be included here. One wonders whether, in times to come, a short cut might be taken and it might be thought a good idea to let the Attorney-General for England and Wales also be the Advocate General for Scotland.
      5 pm
      Clause 82(3) states:
      "If that office is vacant or the Advocate General is for any reason unable to act, his functions shall be exercisable by such other Minister of the Crown as the Prime Minister may determine in writing."
      That suggests that someone, somewhere along the line, has thought that the Advocate General's functions might be carried out by, for example, the Lord Chancellor's Department, or possibly the Secretary of State for Trade and Industry. The field is wide open.
      Amendment No. 12 would allow the vacancy to exist for only one month. Important Scottish legal considerations would come to bear on matters which are still the reserved powers of Westminster. It is important that advice on the Scottish dimension is given by someone suitably qualified in Scots law.
      Mr. Ancram: As a Scottish lawyer, I have some sympathy with the idea of creating more jobs for Scottish lawyers. But does not the hon. Gentleman's point on the Advocate General substantiate something that I was trying to say, which is that the safest form of Advocate General within the United Kingdom is the Lord Advocate? It is clear that he is qualified as a Scottish lawyer but can also bring to that role the influence and weight of the office. To create this new third man, Harry Lime-type creature will not do anything for the law of Scotland or the advice given to the Government here.
      Mr. Wallace: I do not agree, because one cannot serve two masters. As I have already said, we are not talking about the prosecution function, which I think we are all agreed should be separate. If one had a Government of a particular complexion in Edinburgh and one of a different complexion in London, one could not honestly expect the Lord Advocate to deliver legal advice to both. The right hon. Gentleman says that that problem would not arise because the Lord Advocate would not be involved in the Scottish Parliament, and I have given the reasons why that would not be appropriate.
      It is important to have someone available in Westminster to give advice on Scottish legal matters and, by the very character of the being, it must be someone in step and in political sympathy with the Government of the day.
      Mr. Andrew Rowe: As a non-Scottish lawyer, I seek a piece of information. If a constituent of mine from Kent crosses the border into Scotland and falls foul of the procurator fiscal service in circumstances that I regard as oppressive and improper, with whom can I take up my anxieties?
      Mr. Wallace: It would not be the Advocate General, because he would not have responsibility. The practical

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      answer is that the hon. Gentleman could take the matter up with the Lord Advocate. I would fully expect the Lord Advocate of the day to treat seriously any such letter from an hon. Member of this House. We write to European Commissioners who are not answerable to us, but we expect and hope to have our letters treated seriously, which, for the most part, we do.
      In terms of theoretical accountability, as I have already said, at the end of the day, because of the clause that we have already debated, it would be possible for the Lord Advocate to appear before a Select Committee of this House and, in that way, there may be some indirect accountability. The practical point is that, if the hon. Gentleman had an aggrieved constituent, he would take it up with the Lord Advocate and I would fully expect any Lord Advocate worth his or her salt to give a decent and considered reply, in the same way as a Member of the Scottish Parliament would get such a reply if he wrote. In practical terms, that is not a problem.
      The balance struck by the Government of the two Law Officers being part of the Scottish Parliament and the Scottish Executive shows the seriousness of our intent with regard to the creation of the Parliament. If, somehow or other, the Lord Advocate were thought to be too grand a person for the Scottish Parliament, it might lead to questions as to what kind of Parliament we are creating in the first place. The Government have struck the right balance, but my amendments would secure the position and the independence of the procurator fiscal service and the advocate-deputes in terms of prosecution.
      Mr. Salmond: I can help with the reason why the right hon. Member for Devizes (Mr. Ancram) keeps referring to the third man and Harry Lime. As I remember the plot of the film, Orson Welles kept disappearing down the drains of Vienna. Given the state of the Tory party, that seems an apt analogy.
      I come now to the humbug behind the right hon. Gentleman's formulation. The current system of Law Officers' accountability to this place is clearly unsatisfactory. The hon. Member for Linlithgow (Mr. Dalyell) made the point. His 14 Adjournment debates had all been answered by proxy because it is 10 years since a Law Officer sat in this place who could answer the hon. Gentleman directly. Perhaps it was because the Law Officers were facing the hon. Gentleman that they decided no longer to be in this place, but that is an unsatisfactory position that the right hon. Member for Devizes was perfectly happy to allow for 10 years.
      Clearly, under the Bill, Members of the Scottish Parliament will be able to make the Law Officer directly accountable by questioning, by proper democratic process. That must be an enhancement of the current position. It may be an incentive for the hon. Member for Linlithgow to stand for the Scottish Parliament so that he can pursue the Lockerbie debate directly with the Solicitor-General and the Lord Advocate—who knows? But whoever does it, whether it be the hon. Member for Linlithgow or his Scottish National party replacement, the provision will enhance the democratic process.
      The right hon. Member for Devizes is perfectly happy in his amendments to remove the Lord Advocate from the provenance of the Scottish Parliament so that the senior Law Officer in Parliament will not be available directly
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      to the Members of the Scottish Parliament, despite the fact that the vast majority of the issues will fall under the matters devolved to that Parliament. In place of that, he brings forward a few exceptions in terms of the reserved matters.
      In one of our debates two weeks ago, it became clear that, against my wishes and those of many other hon. Members, it would not be within the ability of the Scottish Parliament to summon UK Ministers. It could invite UK Ministers in much the same way as we can invite the Lord Advocate to the Scottish Grand Committee at the moment. But it would still be within the rights of this Parliament's Select Committees to summon Scottish Ministers before them, as they summon other people, if so required.
      The Opposition—in their amendments and in the position celebrated by Conservative Members when they congratulated the Government on the question of witnesses only two weeks ago—are perfectly happy to allow a democratic vacuum, whereby the senior Law Officer is not available to Members of the Scottish Parliament for questioning, in pursuit of a few isolated cases in which they think Westminster's responsibility should prevail. It is that attitude of trying to limit the Scottish Parliament's powers—
      Mr. Ancram: If the Lord Advocate, although still remaining the adviser to the United Kingdom Government, could give answers to the Scottish Parliament, would the hon. Gentleman withdraw his objection?
      Mr. Salmond: Of course not. I argue that the Law Officer should be directly accountable to the Scottish Parliament. It is the right hon. Gentleman who has to account for the situation that he is prepared to allow which would mean that the Scottish Parliament did not have the ability to hold the senior Law Officer in Scotland directly accountable. That attitude towards the legislation—trying to draw back whatever can be saved for this place and the other place at Westminster—is the real reason for the miserable, down the drain, 9 per cent. that the Conservative party faces in the elections to the Scottish Parliament in a year's time.
      The Minister for Home Affairs and Devolution, Scottish Office (Mr. Henry McLeish): I wish to start by referring to the initial comments of my hon. Friend the Member for Linlithgow (Mr. Dalyell) on the many Adjournment debates he has had on Lockerbie. As a newly appointed Minister about to face the 14th debate, I sat with some trepidation. As it was an Adjournment debate, however, I thought that I could relax until 10 o'clock. This historic moment was the evening before the publication of the White Paper and, at 6.10 pm, the business in the House collapsed.
      My hon. Friend was on stage at that point. Remarkably, after an hour, he started to read from his notes—after speaking for one hour without any. We finished at 8.50 pm, and it was an important occasion for me in dealing with Lockerbie. My hon. Friend answered the question on prosecution—it is about the jurisdiction in which prosecution takes place. I shall deal with some of the points made about the Lord Advocate in a moment, but that is an important point.

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      We have had a useful debate on the role of the Law Officers and the way in which they will be dealt with under devolution. Before dealing in detail with the amendments. It may help if I clarify first what is proposed for the Law Officers in the Bill.
      The policy that the Bill reflects was summarised briefly in the White Paper, which recognised that the Scottish Executive would require the services of Law Officers to provide them with advice on legal matters and to represent their interests in the courts. In addition, the role and responsibilities of the Lord Advocate as prosecutor were to be devolved, with his traditional independence maintained. The Bill delivers that policy and safeguards the Lord Advocate's independence in a number of its provisions.
      At present, the Lord Advocate and the Solicitor-General for Scotland are the Scottish Law Officers to the United Kingdom Government. The Bill provides for them to cease to be members of the UK Government and to become members of the Scottish Executive. They, along with the other Ministers, will be known as the Scottish Ministers. The effect of clause 45(3) is that the Lord Advocate and the Solicitor-General will cease to be Ministers in the UK Government and will cease to be the UK Government's Scottish Law Officers. Clause 45(1) provides for the appointment and the removal from office of the Law Officers, and makes this subject to the agreement of the Scottish Parliament.
      All the functions conferred on the Scottish Ministers will be capable of being exercised by any of them. It will be for the First Minister to determine the portfolios of individual Scottish Ministers. However, the Lord Advocate and the Solicitor-General for Scotland are to be the Law Officers to the Scottish Executive, and the intention of the Bill is that their functions as Law Officers should not be exercisable by any other Scottish Minister—a point alluded to by the right hon. Member for Devizes (Mr. Ancram).
      The Bill ensures that these Law Officer functions are retained by the Law Officers in their own names. The functions of the Law Officers principally involve their being the main legal advisers to the Government in matters of Scots law, and representing the Crown and the Government in civil and criminal proceedings. While the term "Law Officer" in itself does not, as a matter of law, confer any particular function or status, certain specific functions are conferred upon the Lord Advocate in his capacity as Law Officer.
      Retained functions include the functions of the Lord Advocate as Her Majesty's Advocate—as the head of the systems of criminal prosecution and the investigation of deaths in Scotland. The Lord Advocate will be entrenched in that role by clause 28(2)(e), and clause 45(2) confirms the continued independence of the decisions of the Lord Advocate in his capacity as the head of the systems of criminal prosecution and the investigation of deaths in Scotland. These provisions secure the protection that the Lord Advocate requires to fulfil those responsibilities in a way which will uphold his traditional independence.
      All the other functions currently exercisable by the Lord Advocate that do not relate to his Law Officer functions—whether they concern devolved or reserved matters—will require to be transferred from him before
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      he ceases to be a Minister of the Crown or becomes a member of the Scottish Executive. Transfer of function orders will need to be made to effect this and, for the information of the House, I have today laid three working drafts of the orders in the Library.
      Mr. Ancram: We understand that, under the Bill, the legal functions of the Law Officers are protected from being exercised by anyone else. However, I am interested in where the reverse could be the case. Under clause 48(3), a Law Officer might find himself exercising the statutory functions of another Minister of the Executive, and I gave planning as an example. Am I right in thinking that, under that provision, that is possible? If it is, does the Minister think that it is desirable?
      Mr. McLeish: It would be possible, but it would be ridiculous and certainly would not reflect any precedent in the current distribution of functions within a ministerial team. The right hon. Gentleman once again picks an extreme example on which to base his case. That will not happen. We want to ensure that the ministerial functions are capable of being exercised by Ministers of the Executive. There is nothing surprising about that, and it is a reasonable step forward.
      Mr. Ancram: If the Minister is right to say that that position will never arise, and that there is no possibility of a Law Officer exercising the functions of another member of the Executive, what is the point of having them as members of the Executive? The purpose of our amendment is not to prevent them from advising the Scottish Parliament, but to remove them from the Executive. We cannot see the purpose or benefit of the Law Officers being members of the Executive, but we can see a lot of dangers in blurring the distinction between their office and the offices of other members of the Executive.
      5.15 pm
      Mr. McLeish: I do not see the danger. At present, I am the Minister responsible for home affairs, devolution and transport, but there may be occasions within my ministerial work when I am working on health or education matters. It is common sense to allow members of the Executive to carry out these functions.
      Mr. Ancram: The Minister has missed the point.
      Mr. McLeish: No, I have not. We are suggesting that the Lord Advocate and the Solicitor-General will be Ministers and part of the Scottish Executive. There is nothing remarkable in that proposal, and I hope to explain why it makes so much sense.
      I referred to the fact that a draft transfer of functions order had been placed in the Library, and I hope that hon. Members will avail themselves of the opportunity to look at it. There will also be another order to transfer certain functions from the Lord Advocate to a new UK Minister called the Advocate General for Scotland, who will become the Scottish Law Officer to the UK Government. His office is provided for in clause 82.
      Before the Lord Advocate becomes a member of the Scottish Executive, certain of his functions that relate to reserved matters will be transferred to the Advocate General by the order. Apart from the functions that the Lord Advocate is retaining, the functions he currently exercises in relation to devolved matters will be

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      transferred first to the Secretary of State under one of the transfer orders. They will then be transferred to the Scottish Ministers under clause 49, when they will become exercisable by any of the Scottish Ministers as determined by the First Minister.
      The reason why these functions have to be transferred first to the Secretary of State is that they have to be transferred from the Lord Advocate to another UK Minister of the Crown before the two Scottish Law Officers cease to be part of the UK Government. This allows the functions then to be transferred to the Scottish Ministers under clause 49. Functions currently exercisable by the Lord Advocate in relation to reserved matters will be transferred by the draft orders to UK Ministers of the Crown. Most will subsequently be transferred to the Scottish Ministers by the draft Transfer of Functions (Scottish Ministers) Order, which will be made under clause 59. I have made available to the House a draft of that order.
      In light of that background, I wish to address myself to the amendments. Amendments Nos. 10 and 11 would require the Law Officers to the Scottish Executive—the Lord Advocate and the Solicitor-General for Scotland—and the new Scottish Law Officer to the UK Government, the Advocate General for Scotland, to be legally qualified in Scotland, either as an advocate or as a solicitor.
      As the hon. and learned Member for Orkney and Shetland (Mr. Wallace) will be aware, the offices of Lord Advocate and Solicitor-General are, by custom, held by distinguished members of the Scottish Bar. It has not been felt necessary in the past to prescribe the qualifications for office of the Scottish Law Officers, and it is not clear why this should be necessary now. To do so would be inconsistent with the Government's intention to legislate for a responsible Parliament and Executive, which can be expected to ensure that holders of these vital offices of state are qualified for them.
      Some reference was made to the history of the offices. I referred to the holders of the offices as being distinguished members of the Scottish Bar. That has been the case for the Lord Advocate's office for some 400 years and, for the Solicitor-General's office, for some 300 years. Custom has served us well in Scotland, and there is no reason why that should change.
      Mr. Wallace: Does the Minister accept that it could be possible for a solicitor, particularly one who holds rights of audience in the Supreme Court, to become Lord Advocate or Solicitor-General? In the case of the Advocate General for Scotland, which is a new appointment, there might be a temptation for the Government to cut corners and double up on a salary, possibly with the Attorney-General. In that case, would it not be worth while spelling out the qualifications required?
      Mr. McLeish: The question of the possible appointment of a solicitor to one of those offices is not an appropriate one for the Bill. The advent of rights of audience for solicitors and of solicitor-advocates may well give rise to the question whether it is strictly necessary for the Lord Advocate and Solicitor-General to be drawn only from the Faculty of Advocates. There are a number of interests which it would be appropriate to consult before proceeding with any change on that matter.
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      In view of the wide range of the Lord Advocate's responsibilities, both formal and informal, it is essential that he or she should command the full confidence of the courts. That may be an issue which, in the fulness of time, the Scottish Parliament will wish to consider, but it is not an appropriate subject for the Bill.
      Similar considerations apply to the appointment of Advocate General. Clearly, the UK Government would wish to appoint only an eminent Scottish lawyer to a ministerial office of that nature, but there is no need to specify those qualifications in legislation. This is an area in which we can rely on long-established custom and practice, and I therefore ask the hon. Gentleman to withdraw the amendment.
      Amendment No. 12 provides that the functions of the Advocate General may be exercisable by another Minister of the Crown in the event of a vacancy or the incapacity of the Advocate General, provided that a vacancy lasts for no more than a month. The effect is to make it impossible for there to be a vacancy for longer than a month. Although I appreciate that the amendment is intended to ensure that the office of Advocate General for Scotland is not left vacant for too long, the matter can safely be left to the good sense of all concerned, as it might have other consequences.
      Clause 82(3) provides for the Prime Minister to determine that another Minister of the Crown should carry out the Advocate General's functions if the office is vacant, or if the Advocate General cannot act, for example, because of illness. I fully accept that it would be in no one's interest for the office to be left vacant for long and, except for circumstances beyond anyone's control, I cannot envisage the office being left vacant for longer than a month.
      I cannot agree that it is necessary to prescribe time limits to the provisions in clause 82. In any circumstances in which there was a vacancy or incapacity, whoever was appointed by the Prime Minister to hold the fort would be advised by the Scottish legal experts in the Advocate General's Department. There would be no question, therefore, of the UK Government taking decisions without regard to Scottish law.
      Mr. Salmond: May I press the Minister on his opinion on Law Officers' independence? We have had Law Officers who have been anything but politically independent—Lord Mackay of Clashfern kept making interventions in the constitutional debate; each was described as "unprecedented". The last Solicitor-General stood for a seat unsuccessfully in the general election. I am genuinely interested to know what the Minister thinks the question of Law Officers' independence means, because there has been no tradition of political independence.
      Mr. McLeish: The hon. Gentleman asks a reasonable question. We should look at the totality of the Lord Advocate's functions and responsibilities in the new Scottish Parliament. He will be a member of the Scottish Executive and would therefore advise on legal aspects of political policy as it unfolds, but in relation to the prosecution function and overseeing investigations into

      175
      deaths, his independence is absolutely vital. As in any democracy, an important balance must be struck. The proposals before us contain the right balance.
      Mr. Dalyell: It may be unlikely, and it would not happen often, but in the event of a difference of opinion between the Advocate General and the Lord Advocate, who would resolve it?
      Mr. McLeish: Such points were raised at previous Committee sittings. We assume that the balance of common sense will prevail in many of the issues that will be dealt with between Westminster and the new Parliament at Holyrood. If we reach the point where matters must be resolved, the systems of debate and dialogue must come into play. When we have discussed such matters, we have always considered the most pessimistic scenario. That is understandable, but I would hope that, especially in this area, which is absolutely vital to the freedom of individuals and to the public interest, those matters will be fully resolved.
      I am grateful to the right hon. Member for Devizes (Mr. Ancram) for saying why he considers amendment No. 274 to be desirable. The amendment is both unnecessary and, I am afraid to say, would run counter to what is envisaged by the Bill.
      As I explained, the Bill provides that the Lord Advocate and the Solicitor-General for Scotland should be members of the Scottish Executive. It does not, however, need to provide expressly that they will become the Law Officers of the Scottish Executive. The Solicitor-General will continue to be able to carry out the functions of the Lord Advocate in terms of the Law Officers Act 1944.
      The amendment describes the Solicitor-General as the Law Officer to the Scottish Executive. I am left wondering where the amendment would leave the Lord Advocate. The right hon. Member for Devizes said that Scotland could deal with one Law Officer, not two. The amendment would, by implication, deprive the Lord Advocate of his intended role as principal Law Officer to the Scottish Executive.
      The Government believe that both the Lord Advocate and the Solicitor-General should be the Law Officers to the Scottish Executive, and that the two offices should continue to have the sort of relationship that has existed for more than three centuries. The amendment would destroy that.
      Mr. Dalyell: May I also ask about the back-up to the Advocate General? Clearly, the civil servants and the Crown agent are responsible to the Lord Advocate and the Solicitor-General, but what about the civil servants responsible to the Advocate General? Will they be UK civil servants, or responsible to the Scottish Parliament?
      Mr. McLeish: It is a UK appointment and they will be UK civil servants. The Government will deal in due course with the details and procedures behind setting up the office and the specific functions.
      Amendments Nos. 289 and 290 allow the subordinate legislation under which functions may be executively devolved to determine whether the functions should be exercised by the Scottish Law Officers rather than by
      176
      Scottish Ministers generally. The purpose appears to be to try to allow particular functions to be assigned specifically to the Scottish Law Officers rather than to the Scottish Ministers.
      That goes against the general approach in the Bill, which is to make fully and executively devolved functions exercisable by any Scottish Minister. In legal terms, they will be equally capable of exercising those functions. In practice, that will leave the First Minister with the proper degree of discretion to decide which of his Ministers should exercise particular functions. Only in respect of the Lord Advocate's retained functions, which are his Law Officer functions and his functions as head of the systems of prosecution and deaths investigation service, will the Law Officers exercise functions that cannot be exercised by another Scottish Minster.
      I expect that the First Minister will wish to allocate functions in accordance with the Scottish Ministers' portfolios. In practice, it is likely that certain policy functions that relate to the Scottish judicial system will be exercised by the Scottish Law Officers.
      In line with the devolution of responsibility for the judicial system in Scotland, the draft Executive devolution order lists a number of functions currently exercised by the Lord Advocate and the Secretary of State in relation to tribunals concerned with reserved matters. Those functions involve making or being consulted about appointments, and procedural rules and other procedural matters. Executive devolution will enable the functions to be exercised by the Scottish Minister. We expect the First Minister to allocate the functions in question to the Scottish Minister responsible for civil justice matters, whether he be the Lord Advocate or some other Scottish Minister. In exercising those functions, the role of the relevant Scottish Minister would relate to his involvement in the civil justice system rather than to any other policy interest of the Scottish Executive in the matter concerned.
      However, there would be no justification for fettering the discretion of the Scottish Ministers as the amendment proposes. The Committee has to make up its mind whether it wants power and responsibility to be devolved to a Scottish Parliament and a Scottish Executive that can stand on their own feet and be responsible for their own decisions. There is no need for the type of provision proposed in the amendments.
      I ask the Committee to resist amendment No. 303, which appears to be intended to prevent the Lord Advocate and the Solicitor-General for Scotland from being members of the Scottish Executive. That would be quite inappropriate. The Lord Advocate and the Solicitor-General will be the Law Officers to the Scottish Executive. That means that they will be expected to provide advice from a legal perspective on the formulation and implementation of policy. They can only properly do that if they are members of the Scottish Executive.
      Amendment No. 303 would therefore severely restrict the role of the Law Officers, which I am sure is not what the right hon. Member for Devizes intends. It is vital to the Scottish Executive that the Law Officers should play a full and effective part in it. The devolution of the Law Officers and their responsibilities is one of the key respects in which the Bill improves on the 1978 Act. The amendment would be a significant weakening of the Bill. For those reasons, I ask the right hon. Gentleman to withdraw amendment No. 303.

      177
      Amendment No. 314 would extend the provision on the independence of the Lord Advocate to officials and agents appointed by and responsible to the Lord Advocate, such as Crown Office staff, procurators fiscal and Crown counsel.
      The amendment is defective because clause 45(2) protects any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland. It does not make any sense to refer, as the amendment does, to any decision by such an official or agent taken in that capacity because the official or agent is not the head of those systems. Furthermore, the amendment could be taken to mean that any decision of an official or agent of the Lord Advocate is required to be taken independently of the Lord Advocate.
      5.30 pm
      The amendment is unnecessary. It presumably seeks to protect any decision for which formal responsibility rests with the Lord Advocate but which in practice is taken by one of his officials for whom he is responsible. Any such decision is regarded as the decision of the Lord Advocate. It is important to underline that point. The reference to the Lord Advocate will therefore include any such official. Accordingly, the guarantee of independence of the Lord Advocate should be sufficient to protect officials from outside pressures without express mention.
      I should also point out that clause 28(2)(e), which entrenches the position of Lord Advocate as head of the systems of criminal prosecution and investigation of deaths, will also have the effect of ensuring that any officials and agents who are appointed by the Lord Advocate in connection with those functions will remain answerable to him. That reinforces the guarantee of independence.
      In the light of that explanation, I trust that right hon. and hon. Members will agree that the amendment is unnecessary.
      Government amendment No. 321 is a drafting amendment that is intended to clarify clause 48(6) by making it clear that what the Bill refers to as the Lord Advocate's "retained functions"—those functions that are exercisable by him alone—include any functions that may be conferred on him alone in future legislation.
      It is not intended to refer to any statutory functions that are at present conferred on him because, to the extent that he retains them, they will be caught by the reference in clause 48(6)(a) to
      "any functions exercisable by him immediately before he ceases to be a Minister of the Crown".
      The amendment refers to any functions that the Scottish Parliament may confer on the Lord Advocate in connection with the criminal prosecution or deaths investigation systems. It is simply a clarificatory point.
      Mr. Ancram: A familiar and depressing atmosphere surrounded the Minister's reply. His standpoint is that his legislation is unamendable. I hope that he will consider that point carefully. Several amendments were tabled in good faith, including those of the hon. and learned Member for Orkney and Shetland (Mr. Wallace), yet we were told that they were not necessary. That attitude comes from a mind-set that assumes that legislation is
      178
      perfect. As a lawyer, I can tell the Minister that, if legislation had ever been perfect, there would not be much work for lawyers. It is because legislation is so often imperfect that many of us manage to earn a living as lawyers.
      I was slightly surprised to be lectured about the fact that the Conservative Government did not have a Law Officer in this House.
      Mr. McLeish indicated dissent.
      Mr. Ancram: Not necessarily by the Minister, but by others.
      It is obvious that the Government do not believe that a Law Officer should sit on the Treasury Bench to deal with legal matters in Scotland. They do not have the excuse that they have no one who is appropriately qualified. The hon. and learned Member for Edinburgh, Pentlands (Dr. Clark) is perfectly qualified to hold that position, but for reasons best known to themselves the Government decided that the Law Officer should speak in the other place. There is a question mark over the sincerity of their view of the importance of having the Lord Advocate in the Scottish Parliament to answer questions, because they have not adopted that position for this House.
      The hon. and learned Member for Orkney and Shetland tabled some good amendments that we would have supported, but we were told by the Minister that they were not acceptable. I am now used to the interventions of the right hon. Member for Banff and Buchan (Mr. Salmond). Is he right honourable?
      Mr. Salmond: No.
      Mr. Ancram: Honourable but not right yet—that clarifies matters.
      The hon. Gentleman seems to regard everything that is proposed, certainly by Conservatives, as part of a conspiracy to destroy the Scottish Parliament. I do not think for a moment that he believes that, because he has no interest in making the Scottish Parliament work. He wants it to fail so that we move towards independence. I suspect that he criticises our proposals because he believes that they give the Scottish Parliament a better chance of sustaining itself within a devolved system, which will ensure that it does not go down the slippery slope towards independence.
      Mr. Salmond: It is early days, but it seems that my point of view on the Scottish Parliament elections is doing rather better than that of the right hon. Gentleman. Does he not think that, if the Scottish Parliament works, and if people have confidence in that new institution, it will lead to a move towards independence?
      Mr. Ancram: The hon. Gentleman wants conflict and dispute between this House and a Scottish Parliament, because he believes that that will operate in favour of his ambitions and objectives. Throughout the referendum campaign, we argued that the creation of a Scottish Parliament would not diminish nationalism but would create a focus for it, and that nationalism would increase. If anything, the opinion polls show that our fears were right. The urbane reassurances that we were given by Labour Members are now seen for what they are.

      179
      The Minister gave us some interesting information about the clause. I thank him for that, because we learned much about the intentions behind the clause. However, he did not answer our questions on the amendments. On one amendment, he said that the matter could safely be left to the good sense of all concerned. It is not an answer to say that a provision need not be in the legislation because we can rely on the good sense of all concerned. I do not share his touching faith in human nature. People who want the Scottish Parliament to work would be wise not to rely on faith in human nature: they should ensure that the right statutory provisions are in place.
      The Minister gave no reason why the Law Officers should be members of the Executive. He said that it was so that they could give legal advice on political events as they unfolded. Why can they not do that from outside the Executive, as do other legal advisers? They do not have to be part of what they are legally advising: in fact, their advice is often better for their not being part of it.
      The hon. Member for Linlithgow (Mr. Dalyell) made two important points about the Advocate General. He asked what would happen if there were a dispute between the Lord Advocate and the Advocate General. We received a wittering answer that did not tell us whether there was a mechanism to resolve such a dispute, which would be very serious for the law of Scotland.
      in answer to the question who would service the Advocate General's Department, we were told that civil servants would be made available. Where will they come from? The Crown Office? Will they be trained in Scottish law? Will they be seconded from among the civil servants who would otherwise look after the Lord Advocate and the Solicitor-General? We have no answers to those questions. Yet again, we are told that we must leave it to the good sense of all concerned. We are not prepared to leave such matters to the good sense of all concerned. I ask my colleagues to support my amendment.
      Mr. Dalyell: To whom will the civil servants who work for the Advocate General be responsible? Are they part of the home civil service and ultimately responsible to its head, who is currently Sir Richard Wilson, or to the permanent secretary at the Lord Chancellor's Department, or will they be responsible to the Scottish Parliament? That is an important question. Before we reach the later stages of the Bill, something more must be said about the possibility of a difference of opinion between the Advocate General and the Lord Advocate, because such a dispute is not so arcane, esoteric or hypothetical as we may suppose.
      Mr. Wallace: I want to take up some of the points raised by the Minister in response to amendments that I tabled. First, however, let me take up what the right hon. Member for Devizes (Mr. Ancram) said when he was engaging in his bit of banter with the hon. Member for Banff and Buchan (Mr. Salmond).
      I think that there will be a penalty to be paid by any party that tries to wreck the Scottish Parliament, and I do not think that it is in any party's interest to do so. That is why I want the Scottish Parliament to be as fully fledged as possible. I think that a measure that took away a wing of it by refusing to allow the principal Law Officer of
      180
      Scotland to be accountable to, or to be a Member of, the Scottish Parliament would give rise to conflict and frustration. I am not saying that that was the motive behind amendment No. 303, but I believe that it could be the consequence of it. If the right hon. Member for Devizes wants to know how the wrecking would happen, let me tell him that I think it would result from not having the Lord Advocate as a Minister in any Scottish Executive.
      I was disappointed by the Minister's reply, which was traditionally conservative with a small "c": "It has happened for years, and therefore it will go on happening." I take the Minister's point that we do not want to circumscribe the Scottish Parliament in too many ways, but he ought to accept that, far from circumscribing the Parliament by tradition—which, I think, is what he was trying to do—my amendments would open it up, making the pool from which the Lord Advocate and Solicitor-General might be chosen somewhat wider than tradition would allow it to be. I do not intend to press the matter to the vote on this occasion, but I think that what was said will be noted.
      I want to reserve our position on amendment No. 11, which relates to clause 82 and requires the Advocate General to be properly qualified in the law of Scotland. The right hon. Member for Devizes referred to the "good sense" of all concerned. When the Conservatives were in government, I used to apply what I have always considered to be a very good test: "How would you like the powers to be in the hands of the Opposition?" Does the Minister really think that the good sense of all concerned would necessarily be exercised in the right way if, as may happen, the Conservatives returned to office? After all, they have been in office before, and they may be again. Does the Minister trust the Conservatives to exercise good sense, or does he think that they may try to take a short cut?
      In the case of the Advocate General, I do not think that we can rely on centuries of tradition, because there is no tradition. We are creating a new post. It will be an important post, because large areas of responsibility affecting Scotland will remain with the House of Commons, and we hope that the advice on Scottish law that the Government of the day are given will be of the best quality. I do not think that we can leave the matter to chance, good sense, good luck and good will.
      Especially with regard to the Advocate General, we should not leave things to tradition. There is an old story about someone saying, "As from tomorrow, this college will have a new tradition." I think that the Minister was saying, "As from the time when the Bill is enacted and a Scottish Parliament is established, there will be the tradition of the Advocate General."
      Mr. Nick Hawkins: The hon. Gentleman speaks of changes in traditions. Is he aware that recently, when it came to breaking traditions in regard to legal matters, the Government decided to introduce special legislation so that, for the first time, a non-lawyer could become permanent secretary to the Lord Chancellor's Department? Is it not consistent with the hon. Gentleman's argument, rather than with the Government's argument, that in certain circumstances—

      181
      when it suits them—the Government are prepared to depart from legal tradition, while on this occasion they are not?
      Mr. Wallace: I was not aware of that. I have not been paying close attention to the machinations of the Lord Chancellor's Department. Perhaps I have read more in the press about the Lord Chancellor's wallpaper than about his permanent secretary. The hon. Gentleman makes a good point, however: traditions can be overturned. One of my amendments would allow for the development of a tradition, but in the context that we are discussing there is no tradition, and I think that there ought to be rules. As I have said, we shall reserve our position in respect of clause 82.
      5.45 pm
      Mr. McLeish: I find it remarkable that the right hon. Member for Devizes (Mr. Ancram) is always so keen to reinvent the wheel. At present, the Lord Advocate is a member of the Government, and I submit that in past Conservative Administrations the position was probably the same. What is the great remarkable discovery about the Lord Advocate in the Scottish Parliament being a member of the Scottish Executive? I think that the point is bogus. We are seeking to strengthen the legal advice on policy within the Scottish Executive, while ensuring that the independence that the Lord Advocate requires to exercise his function is there in a real sense. We have presented a clear and coherent package in terms of that accountability, which should be commended.
      My hon. Friend the Member for Linlithgow (Mr. Dalyell) referred to the discussions between the Advocate General and the Lord Advocate. As I have said, Labour Members feel no malice in regard to what may happen between a Scottish Parliament and the Westminster Parliament. That said, two parts of the Bill refer to policy resolution and the question of vires. My hon. Friend was right to stress the fact that, ultimately, there will be ways of resolving disputes, and one way will be through the courts.
      My hon. Friend asked about the Advocate General's staff. They will of course be United Kingdom civil servants, responsible to the Advocate General at Westminster rather than to the Scottish Parliament.
      The practical strength of our proposals lies in the attempt to provide a coherent package for the Lord Advocate and the Solicitor-General. I take on board my hon. Friend's comments, because he has taken a passionate interest in ensuring that we get the balance right, but we believe that the right balance has been struck. I therefore urge the right hon. Member for Devizes to withdraw his amendment.
      Question put, That the amendment be made:—
      The Committee divided: Ayes 138, Noes 352.

      Division No. 159]

      [5.46 pm

      AYES

      Ainsworth, Peter (E Surrey)

      Bercow, John

      Amess, David

      Beresford, Sir Paul

      Ancram, Rt Hon Michael

      Blunt, Crispin

      Arbuthnot, James

      Body, Sir Richard

      Atkinson, David (Bour'mth E)

      Boswell, Tim

      Atkinson, Peter (Hexham)

      Bottomley, Peter (Worthing W)

      Baldry, Tony

      Bottomley, Rt Hon Mrs Virginia

      182

      Brady, Graham

      Lewis, Dr Julian (New Forest E)

      Brazier, Julian

      Lidington, David

      Brooke, Rt Hon Peter

      Lilley, Rt Hon Peter

      Browning, Mrs Angela

      Loughton, Tim

      Bruce, Ian (S Dorset)

      Luff, Peter

      Burns, Simon

      Lyell, Rt Hon Sir Nicholas

      Butterfill, John

      McIntosh, Miss Anne

      Chapman, Sir Sydney

      MacKay, Andrew

      (Chipping Barnet)

      Maclean, Rt Hon David

      Chope, Christopher

      McLoughlin, Patrick

      Clappison, James

      Madel, Sir David

      Clark, Rt Hon Alan (Kensington)

      Major, Rt Hon John

      Clark, Dr Michael (Rayleigh)

      Maples, John

      Clarke, Rt Hon Kenneth

      Mates, Michael

      (Rushclifte)

      Maude, Rt Hon Francis

      Collins, Tim

      Mawhinney, Rt Hon Sir Brian

      Colvin, Michael

      May, Mrs Theresa

      Cormack, Sir Patrick

      Moss, Malcolm

      Cran, James

      Nicholls, Patrick

      Curry, Rt Hon David

      Norman, Archie

      Davis, Rt Hon David (Haltemprice)

      Ottaway, Richard

      Day, Stephen

      Page, Richard

      Dorrell, Rt Hon Stephen

      Paice, James

      Duncan, Alan

      Paterson, Owen

      Duncan Smith, Iain

      Prior, David

      Evans, Nigel

      Randall, John

      Faber, David

      Redwood, Rt Hon John

      Fabricant, Michael

      Robathan, Andrew

      Fallon, Michael

      Robertson, Laurence (Tewk'b'ry)

      Flight, Howard

      Roe, Mrs Marion (Broxbourne)

      Forth, Rt Hon Eric

      Rowe, Andrew (Faversham)

      Fowler, Rt Hon Sir Norman

      Ruffley, David

      Fox, Dr Liam

      St Aubyn, Nick

      Fraser, Christopher

      Sayeed, Jonathan

      Gale, Roger

      Shepherd, Richard

      Garnier, Edward

      Simpson, Keith (Mid-Norfolk)

      Gibb, Nick

      Smyth, Rev Martin (Belfast S)

      Gill, Christopher

      Soames, Nicholas

      Gillan, Mrs Cheryl

      Spelman, Mrs Caroline

      Goodlad, Rt Hon Sir Alastair

      Spring, Richard

      Gorman, Mrs Teresa

      Stanley, Rt Hon Sir John

      Gray, James

      Streeter, Gary

      Swayne, Desmond

      Green, Damian

      Syms, Robert

      Greenway, John

      Tapsell, Sir Peter

      Grieve, Dominic

      Taylor, John M (Solihull)

      Hague, Rt Hon William

      Townend, John

      Hamilton, Rt Hon Sir Archie

      Tredinnick, David

      Hammond, Philip

      Trend, Michael

      Hawkins, Nick

      Trimble, Rt Hon David

      Hayes, John

      Tyrie, Andrew

      Heathcoat-Amory, Rt Hon David

      Walter, Robert

      Horam, John

      Wardle, Charles

      Howard, Rt Hon Michael

      Waterson, Nigel

      Hunter, Andrew

      Wells, Bowen

      Jenkin, Bernard

      Whitney, Sir Raymond

      Johnson Smith,

      Widdecombe, Rt Hon Miss Ann

      Rt Hon Sir Geoffrey

      Winterton, Mrs Ann (Congleton)

      Key, Robert

      Winterton, Nicholas (Macclesfield)

      King, Rt Hon Tom (Bridgwater)

      Woodward, Shaun

      Kirkbride, Miss Julie

      Yeo, Tim

      Laing, Mrs Eleanor

      Young, Rt Hon Sir George

      Lait, Mrs Jacqui

      Lansley, Andrew

      Tellers for the Ayes:

      Leigh, Edward

      Mr. Oliver Heald and Mr. John Whittingdale.

      Letwin, Oliver

      NOES

      Abbott, Ms Diane

      Atkins, Charlotte

      Anger, Nick

      Austin, John

      Ainsworth, Robert (Cov'try NE)

      Baker, Norman

      Alan, Richard

      Ballard, Mrs Jackie

      Anderson, Donald (Swansea E)

      Barnes, Harry

      Anderson, Janet (Rossendale)

      Barron, Kevin

      Ashdown, Rt Hon Paddy

      Battle, John

      Ashton, Joe

      Bayley, Hugh

      183

      Beckett, Rt Hon Mrs Margaret

      Dismore, Andrew

      Begg, Miss Anne

      Dobbin, Jim

      Beith, Rt Hon A J

      Donohoe, Brian H

      Bell, Stuart (Middlesbrough)

      Doran, Frank

      Benn, Rt Hon Tony

      Dowd, Jim

      Bennett, Andrew F

      Drew, David

      Benton, Joe

      Drown, Ms Julia

      Bermingham, Gerald

      Eagle, Angela (Wallasey)

      Berry, Roger

      Eagle, Maria (L'pool Garston)

      Best, Harold

      Edwards, Huw

      Betts, Clive

      Efford, Clive

      Blears, Ms Hazel

      Ellman, Mrs Louise

      Blizzard, Bob

      Ennis, Jeff

      Borrow, David

      Ewing, Mrs Margaret

      Bradshaw, Ben

      Fearn, Ronnie

      Brake, Tom

      Held, Rt Hon Frank

      Brand, Dr Peter

      Fisher, Mark

      Breed, Colin

      Fitzpatrick, Jim

      Brinton, Mrs Helen

      Fitzsimons, Lorna

      Brown, Rt Hon Nick (Newcastle E)

      Flynn, Paul

      Brown, Russell (Dumfries)

      Follett, Barbara

      Buck, Ms Karen

      Foster, Rt Hon Derek

      Burden, Richard

      Foster, Don (Bath)

      Burgon, Colin

      Foster, Michael Jabez (Hastings)

      Burstow, Paul

      Foster, Michael J (Worcester)

      Butler, Mrs Christine

      Galbraith, Sam

      Byers, Stephen

      Galloway, George

      Cable, Dr Vincent

      Gapes, Mike

      Caborn, Richard

      Gardiner, Barry

      Campbell, Alan (Tynemouth)

      George, Andrew (St Ives)

      Campbell, Mrs Anne (C'bridge)

      George, Bruce (Walsall S)

      Campbell, Menzies (NE Fife)

      Gerrard, Neil

      Campbell, Ronnie (Blyth V)

      Gibson, Dr Ian

      Campbell-Savours, Dale

      Godsiff, Roger

      Canavan, Dennis

      Goggins, Paul

      Casale, Roger

      Golding, Mrs Llin

      Caton, Martin

      Gordon, Mrs Eileen

      Chapman, Ben (Wirral S)

      Gorrie, Donald

      Chaytor, David

      Griffiths, Jane (Reading E)

      Chidgey, David

      Griffiths, Nigel (Edinburgh S)

      Chisholm, Malcolm

      Griffiths, Win (Bridgend)

      Clapham, Michael

      Grocott, Bruce

      Clark, Rt Hon Dr David (S Shields)

      Grogan, John

      Clark, Dr Lynda

      Gunnell, John

      (Edinburgh Pentlands)

      Hain, Peter

      Clark, Paul (Gillingham)

      Hall, Mike (Weaver Vale)

      Clarke, Eric (Midlothian)

      Hall, Patrick (Bedford)

      Clarke, Rt Hon Tom (Coatbridge)

      Hamilton, Fabian (Leeds NE)

      Clelland, David

      Hanson, David

      Clwyd, Ann

      Harvey, Nick

      Coaker, Vernon

      Heal, Mrs Sylvia

      Coffey, Ms Ann

      Healey, John

      Cohen, Harry

      Heath, David (Somerton & Frome)

      Coleman, Iain

      Hepburn, Stephen

      Colman, Tony

      Heppell, John

      Connarty, Michael

      Hesford, Stephen

      Cooper, Yvette

      Hewitt, Ms Patricia

      Corbyn, Jeremy

      Hill, Keith

      Corston, Ms Jean

      Hinchliffe, David

      Cotter, Brian

      Hoey, Kate

      Crausby, David

      Hoon, Geoffrey

      Cryer, Mrs Ann (Keighley)

      Hope, Phil

      Cryer, John (Hornchurch)

      Hopkins, Kelvin

      Cummings, John

      Howarth, George (Knowsley N)

      Cunningham, Ms Roseanna

      Hoyle, Lindsay

      (Perth)

      Hughes, Ms Beverley (Stretford)

      Dalyell, Tam

      Hughes, Kevin (Doncaster N)

      Darling, Rt Hon Alistair

      Hughes, Simon (Southwark N)

      Darvill, Keith

      Hurst, Alan

      Davey, Edward (Kingston)

      Hutton, John

      Davey, Valerie (Bristol W)

      Iddon, Dr Brian

      Davies, Geraint (Croydon C)

      Illsley, Eric

      Davis, Terry (B'ham Hodge H)

      Ingram, Adam

      Dawson, Hilton

      Jackson, Ms Glenda (Hampstead)

      Dean, Mrs Janet

      Jackson, Helen (Hillsborough)

      Denham, John

      Jamieson, David

      184

      Jenkins, Brian

      Morris, Rt Hon John (Aberavon)

      Johnson, Alan (Hull W & Hessle)

      Mudie, George

      Johnson, Miss Melanie

      Murphy, Denis (Wansbeck)

      (Welwyn Hatfield)

      Naysmith, Dr Doug

      Jones, Barry (Alyn & Deeside)

      Norris, Dan

      Jones, Helen (Warrington N)

      Oaten, Mark

      Jones, Ms Jenny

      O'Brien, Bill (Normanton)

      (Wolverh'ton SW)

      O'Hara, Eddie

      Jones, Jon Owen (Cardiff C)

      Olner, Bill

      Jones, Dr Lynne (Selly Oak)

      Öpik, Lembit

      Jones, Martyn (Clwyd S)

      Organ, Mrs Diana

      Jones, Nigel (Cheltenham)

      Osborne, Ms Sandra

      Kaufman, Rt Hon Gerald

      Palmer, Dr Nick

      Keeble, Ms Sally

      Pearson, Ian

      Keen, Alan (Feltham & Heston)

      Pendry, Tom

      Keen, Ann (Brentford & Isleworth)

      Pickthall, Colin

      Kelly, Ms Ruth

      Pike, Peter L

      Kemp, Fraser

      Plaskitt, James

      Kennedy, Jane (Wavertree)

      Pollard, Kerry

      Kilfoyle, Peter

      Pond, Chris

      Kingham, Ms Tess

      Pound, Stephen

      Kirkwood, Archy

      Powell, Sir Raymond

      Kumar, Dr Ashok

      Prentice, Ms Bridget (Lewisham E)

      Ladyman, Dr Stephen

      Prentice, Gordon (Pendle)

      Laxton, Bob

      Prescott, Rt Hon John

      Lepper, David

      Primarob, Dawn

      Leslie, Christopher

      Prosser, Gwyn

      Levitt, Tom

      Purchase, Ken

      Lewis, Ivan (Bury S)

      Quin, Ms Joyce

      Linton, Martin

      Rammell, Bill

      Livsey, Richard

      Rapson, Syd

      Lock, David

      Raynsford, Nick

      Love, Andrew

      Rendel, David

      McAllion, John

      Rogers, Allan

      McAvoy, Thomas

      Rooker, Jeff

      McCabe, Steve

      Rooney, Terry

      McCafferty, Ms Chris

      Ross, Ernie (Dundee W)

      McCartney, Ian (Makerfield)

      Rowlands, Ted

      McDonagh, Siobhain

      Roy, Frank

      Macdonald, Calum

      Ruane, Chris

      McFall, John

      Russell, Bob (Colchester)

      McGuire, Mrs Anne

      Russell, Ms Christine (Chester)

      McIsaac, Shona

      Ryan, Ms Joan

      McKenna, Mrs Rosemary

      Salmond, Alex

      Mackinlay, Andrew

      Salter, Martin

      McLeish, Henry

      Sanders, Adrian

      Maclennan, Rt Hon Robert

      Savidge, Malcolm

      McNamara, Kevin

      Sawford, Phil

      McNulty, Tony

      Sheerman, Barry

      MacShane, Denis

      Sheldon, Rt Hon Robert

      Mactaggart, Fiona

      Short, Rt Hon Clare

      McWalter, Tony

      Simpson, Alan (Nottingham S)

      McWilliam, John

      Skinner, Dennis

      Mahon, Mrs Alice

      Smith, Rt Hon Andrew (Oxford E)

      Mallaber, Judy

      Smith, Angela (Basildon)

      Marek, Dr John

      Smith, Miss Geraldine

      Marsden, Gordon (Blackpool S)

      (Morecambe & Lunesdale)

      Marsden, Paul (Shrewsbury)

      Smith, Jacqui (Redditch)

      Marshall, David (Shettleston)

      Smith, Llew (Blaenau Gwent)

      Marshall, Jim (Leicester S)

      Smith, Sir Robert (W Ab'd'ns)

      Marshall-Andrews, Robert

      Snape, Peter

      Martlew, Eric

      Soley, Clive

      Meacher, Rt Hon Michael

      Southworth, Ms Helen

      Meale, Alan

      Spellar, John

      Michael, Alun

      Squire, Ms Rachel

      Michie, Bill (Shef'ld Heeley)

      Steinberg, Gerry

      Michie, Mrs Ray (Argyll & Bute)

      Stevenson, George

      Milburn, Alan

      Stewart, David (Inverness E)

      Miller, Andrew

      Stinchcombe, Paul

      Mitchell, Austin

      Strang, Rt Hon Dr Gavin

      Moore, Michael

      Stringer, Graham

      Moran, Ms Margaret

      Stuart, Ms Gisela

      Morgan, Alasdair (Galloway)

      Sutcliffe, Gerry

      Morgan, Ms Julie (Cardiff N)

      Swinney, John

      Morgan, Rhodri (Cardiff W)

      Taylor, Rt Hon Mrs Ann

      Morris, Ms Estelle (B'ham Yardley)

      (Dewsbury)

      185

      Taylor, Ms Dari (Stockton S)

      Wareing, Robert N

      Taylor, David (NW Leics)

      Watts, David

      Thomas, Gareth (Clwyd W)

      Welsh, Andrew

      Thomas, Gareth R (Harrow W)

      White, Brian

      Timms, Stephen

      Whitehead, Dr Alan

      Tipping, Paddy

      Wicks, Malcolm

      Todd, Mark

      Williams, Rt Hon Alan

      Tonge, Dr Jenny

      (Swansea W)

      Touhig, Don

      Williams, Alan W (E Carmarthen)

      Trickett, Jon

      Williams, Mrs Betty (Conwy)

      Truswell, Paul

      Willis, Phil

      Turner, Dennis (Wolverh'ton SE)

      Winnick, David

      Winterton, Ms Rosie (Doncaster C)

      Turner, Dr Desmond (Kemptown)

      Wise, Audrey

      Turner, Dr George (NW Norfolk)

      Wood, Mike

      Twigg, Derek (Halton)

      Woolas, Phil

      Twigg, Stephen (Enfield)

      Wright, Anthony D (Gt Yarmouth)

      Tyler, Paul

      Wyatt, Derek

      Vaz, Keith

      Vis, Dr Rudi

      Tellers for the Noes:

      Wallace, James

      Mr. Graham Allen and Mr. Greg Pope.

      Walley, Ms Joan

      Question accordingly negatived.
      It being Six o'clock, THE CHAIRMAN, pursuant to the Order [9 February] and the Resolution [this day], put forthwith the Question necessary for the disposal of the business to be concluded at that hour.
      Clause 41 ordered to stand part of the Bill.

    Clause 42

      THE FIRST MINISTER
      Mr. Dennis Canavan: I beg to move amendment No. 44, in page 18, line 11, leave out from `be' to end of line 13 and insert
      `elected by the members of the Parliament'.
      The Chairman of Ways and Means (Sir Alan Haselhurst): With this, it will be convenient to discuss the following amendments: No. 254, in page 18, leave out lines 19 to 27.
      No. 313, in clause 43, page 18, line 36, leave out 'or'.
      No. 275, in page 18, line 38, at end insert
      'or—

      (e) the First Minister being admitted to a hospital under the Mental Health (Scotland) Act 1984, becoming subject to a guardianship order or having a curator bonis appointed on his estate'.

      No. 76, in clause 44, page 19, line 9, leave out
      `with the approval of Her Majesty'.
      No. 276, in page 19, line 10, after 'appoint', insert
      `up to a total of ten'.
      No. 277, in page 19, leave out lines 11 and 12.
      No. 87, in page 19, line 11, leave out
      `seek Her Majesty's approval for'
      and insert 'make'.
      No. 88, in page 19, leave out line 14.
      No. 89, in clause 46, page 19, line 32, leave out
      `with the approval of Her Majesty'.
      No. 75, in page 19, line 35, at end insert—
      '(2A) The First Minister shall not make any appointment under this section without the agreement of the Parliament.'.
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      No. 90, in page 19, leave out line 37.
      Mr. Canavan: I shall speak to amendment No. 44 and the other amendments in my name and that of my hon. Friend the Member for Dundee, East (Mr. McAllion). Amendments Nos. 44, 76 and 75 are substantive and the others are consequential.
      Amendment No. 44 proposes that the First Minister should be elected by Members of the Scottish Parliament rather than being appointed by the Queen and holding office at Her Majesty's pleasure. As the First Minister will be primus in paribus, or first among equals, it is more appropriate that he or she is elected by his or her parliamentary colleagues than appointed by the Crown.
      In the early stages of the Scottish Constitutional Convention, members of the convention signed a document referring to the sovereignty of the people of Scotland. It seems to me that the concepts of the sovereignty of the people of Scotland and of the sovereignty of a monarch are mutually exclusive. The amendments propose that, if the First Minister is not directly elected by the people of Scotland, he or she should be elected by the people's representatives in the Scottish Parliament.
      I dare say that Opposition Members, and perhaps the Minister, will argue that the role of the monarchy is a mere formality in respect of the governance of the country or the countries that used to be part of the British empire. However, not all that long ago a Labour Prime Minister was ousted from his job in Australia because of the interference of the Governor-General, the Queen's representative.
      In 1974, there were two general elections, and the first resulted in a hung parliament. No party had an overall majority in Parliament, and Harold Wilson was the leader of the party with the largest number of Members. However, the Queen did not call Harold Wilson to the palace. In fact, she called the defeated Prime Minister, the right hon. Member for Old Bexley and Sidcup (Sir E. Heath), to the palace and asked him to cobble up some kind of coalition agreement with Jeremy Thorpe, the then leader of the Liberal party. There was a long hiatus in which, in effect, there was no Government. Harold Wilson, who was the leader of the biggest party, had to wait in the wings until he was called to the palace to form a Government.
      Mr. Wallace: I am following the hon. Gentleman's argument and I am sure that he would not want there to be any inaccuracy. He will also agree that Jeremy Thorpe and his Liberal colleagues showed good sense by not supporting Edward Heath. Is not the point that Edward Heath had the advantage of incumbency—
      The Chairman: Order. I remind the hon. and learned Gentleman that he is referring to a right hon. Member.
      Mr. Wallace: I apologise, Sir Alan. I was speaking from a sense of history, as I was just a boy at the time. It was actually my first vote.
      The right hon. Member for Old Bexley and Sidcup (Sir E. Heath) was the incumbent Prime Minister at the time, so it was not a matter of the Queen sending for him. He had to tender his resignation. I am sure that even the

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      hon. Member for Falkirk, West (Mr. Canavan) would have thought it an abuse if the sovereign had summoned the Prime Minister and demanded his resignation.
      Mr. Canavan: That is exactly what the Queen should have done after the February 1974 general election. Whatever the will of the British people, as expressed at the ballot box, it was quite clear that they no longer wanted the right hon. Member for Old Bexley and Sidcup to be their Prime Minister. The Queen should have summoned him to the palace and sacked him and then called Harold Wilson, but for reasons best known to herself, she did not do that. Sometimes I wonder about the so-called neutral role of the monarchy in respect of politics.
      Ms Roseanna Cunningham: The hon. Gentleman will know that I am very much in favour of reducing the work load of the monarch—preferably to zero. I was interested to hear the intervention of the hon. and learned Member for Orkney and Shetland (Mr. Wallace). I do not know whether he knows what happened in Australia, but in contradiction to his point about 1974—which may be true, but I do not know as I was not here at the time—when the Australian Labour Government were sacked and a general election was called, the Liberals, or the Tories, were appointed in the interim and therefore were in government throughout the election. That is an interesting point as it illustrates the other side of the coin from that referred to by the hon. and learned Gentleman. I agree with the hon. Member for Falkirk, West (Mr. Canavan) about the monarch's neutrality, which remains to be proved.
      Mr. Canavan: I am grateful to the hon. Lady for that intervention as it shows the inconsistency of the monarchy or its representatives when they take a role in the running of Governments or Parliaments.
      We have to bear in mind too that, if the political pundits are correct, there will be a much greater probability of a hung Parliament in the Scottish Parliament because of the system of proportional representation. The amendments would minimise—in fact remove—the possibility of any interference by the monarchy as to who should be the First Minister and form the Government.
      My amendments Nos. 76 and 75 propose that Parliament's agreement should be required in appointing not only the First Minister but other Ministers and that there should be no role for the monarchy in appointing other Ministers or junior Ministers.
      Another anomaly in the Bill is that, under clause 46, the First Minister would require Parliament's agreement before seeking the Crown's approval of the appointment of a Minister, whereas the First Minister could appoint junior Ministers without seeking Parliament's approval. I think that that would be a bad thing and that all ministerial appointments should be subject to Parliament's approval. A Scottish Parliament should not simply ape the patronage system of this place, where the power of patronage is widely open to abuse. As I had started to say, the Crown is the very pinnacle of the patronage system, although in practice the Prime Minister exercises many of those powers.
      We have witnessed many examples—and are perhaps witnessing current examples—of appointments that are made without any reference to Parliament or much democratic accountability. We must remember that the
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      First Minister of Scotland will have tremendous patronage powers, because, presumably, he or she will inherit all the patronage powers currently held by the Secretary of State for Scotland, who is responsible for hundreds of public appointments across Scotland. We are talking not about the appointment of a mere coterie of Scottish Cabinet members and junior Ministers but about patronage over hundreds of public positions across Scotland.
      We should make the First Minister and the First Minister's ministerial colleagues as accountable as possible to the people of Scotland through elected representatives.
      Mr. Salmond: I am very sympathetic to many of the points that the hon. Gentleman is making. However, it seems that clause 43 is something of an advance on the current situation at Westminster, where someone is to be called to the palace—presumably the head of the leading party in the general election. The clause states that the Scottish Parliament will
      "nominate one of its members for appointment as First Minister."
      That seems to go part of the way towards achieving the more satisfactory situation that the hon. Gentleman outlined, and away from the process of mystification that we could have in this place if there were a hung Parliament.
      Mr. Canavan: I agree that the Bill proposes a ministerial appointment system that is better than our current system at Westminster, where Ministers can be appointed without any reference to Parliament. We once had a rule in the parliamentary Labour party that, if someone was an elected member of the shadow Cabinet, he or she would automatically become a Cabinet member when Labour was elected to government. In at least two cases that I know of, that did not happen after 1 May. Furthermore, I know of at least one Minister whose appointment might not have been accepted had it required parliamentary approval. [HON. MEMBERS: "Name him."] I forget his constituency, but I believe that he has something to do with the millennium dome. [Interruption.] Yes, he is the Minister for the dome.
      Mr. Salmond: Is the hon. Gentleman's bleeper going off?
      Mr. Canavan: I have it switched off.
      As I said, the two concepts of sovereignty of the people and sovereignty of the monarch are mutually exclusive. If we really believe in sovereignty of the people, Members of the Scottish Parliament should—as proposed—be elected by the people and accountable to the people. Similarly, Ministers should be elected by the elected representatives of the people. In that way, the Scottish Government or the Scottish Executive would be more accountable to the people of Scotland.
      6.15 pm
      Dr. Liam Fox: I am rather sorry that the hon. Member for Hackney, South and Shoreditch (Mr. Sedgemore)—who said that Labour Members are clones—was not in the Chamber to hear the speech of the hon. Member for Falkirk, West (Mr. Canavan). It is nice to know that he still shops for his speeches at Republicans—'R—Us, adding a bit of colour to the Labour Benches.

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      I shall speak to amendment No. 275, which deals with the important issue of the mental health of Members of Parliament, which is not a laughing matter but a serious issue that is important both for Members of Parliament and for the protection of their electorate—to ensure that representation of the electorate is maintained.
      Mr. McLeish: Just for the record, is present company excepted from the deliberations?
      Dr. Fox: The Minister is asking me to give a professional opinion, which I do not think I want to stray into right now.
      I wonder how many hon. Members realise that the Mental Health Act 1983 has special provisions for section orders for Members of Parliament. Should, for example, an hon. Member fall ill with a mental health problem, a complex procedure will come into play. First, the doctor signing a section order or the person who is in charge of the hospital where the Member is detained will notify the Speaker. Secondly, the Speaker will appoint someone from the Royal College of Psychiatrists to look after the Member. If that Member is still detained under a section order after six months, the seat will become vacant.
      I do not know why there should be such a provision for hon. Members in this place, but not for those in the Scottish Parliament. I think that Ministers have simply overlooked the matter, and I look forward to the Minister bringing the Scottish Parliament into line on that point. It is quite a serious and important matter, which should not be belittled.
      Dr. Lynda Clark: Could the hon. Gentleman advise the Committee of the number of occasions when that provision has been used?
      Dr. Fox: I do not think that it matters whether it has been used: the provision is there to protect the electorate should a Member of Parliament be absent for six months and unable to represent his or her constituents. One would hope that the provision would never have to be used and that hon. Members do not suffer in that way, but it is there to protect the electorate. It is, therefore, important.
      In tabling amendment No. 276, we wanted to examine a different aspect of the Bill. Our amendment would limit the size of the Scottish Executive. "Erskine May", for example, limits the Prime Minister's freedom of manoeuvre in establishing the number of places in his Cabinet, yet this Bill places no limitation on the size of the Scottish Executive. The Bill provides for an unspecified number of Ministers plus an unspecified number of junior Ministers. The Scottish Office is currently run by the Secretary of State and five Ministers. One would not wish a situation to arise—which has occurred elsewhere—in which the number of Ministers was increased simply to keep Members quiet, by appointing more of them as Ministers. The hon. Member for Falkirk, West dealt with the matter of patronage in his speech.
      When I was at the Foreign Office—although I do not suggest that it might happen in the Scottish Parliament—one of the Governments whom I dealt with was the Government of Nepal. As the coalition Government started to crumble, one side of the Parliament consisted of 130 Members, of whom 85 were Ministers. I see the hon. Member for Falkirk, West smiling—perhaps because
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      he foresees the possible bonanza. However, it will happen only at the taxpayers' expense. If we are to avoid "jobs for the boys" gibes, we shall have to ensure that we are not writing a blank cheque for Members of the Scottish Parliament or giving unlimited powers of patronage to the First Minister.
      Mr. Andrew Welsh: Not content with limiting the powers of a Scottish Parliament, the Tories want to limit the number of Scottish Ministers to fewer than those in a football team—and for ever more. Surely the size and shape of the Scottish Cabinet is up to the Scottish Government and the Scottish Parliament. It is again clear that the Tories have no trust or faith in the Scottish people or their democracy.
      Dr. Fox: Quite the reverse—the issue is about having less faith in politicians than in the people. We are concerned with the ability of politicians to rein themselves in when offered a blank cheque. We have tabled the amendments from the point of view of protecting the electorate from politicians. When the people of Scotland voted in large numbers in favour of the proposals in the referendum, I do not think that they ever wanted to give such a blank cheque to the Parliament or for there to be an unspecified number of Ministers.
      Given that in this House Ministers are appointed by the Prime Minister, and that the First Minister will have to have the Scottish Parliament's approval, it would be excessive to stipulate that all Ministers had to be approved by the Scottish Parliament. To introduce an American style of approval of Ministers, such as that welcomed by the hon. Member for Falkirk, West, would be excessive control over the First Minister's freedom. Such control does not apply in Westminster, and the case has not been made for it to apply in the Scottish Parliament. I hope that the Minister will reconsider.
      Mr. John McAllion: I shall speak in support of the amendments tabled in my name and that of my hon. Friend the Member for Falkirk, West (Mr. Canavan). The amendments would delete the following phrases:
      "appointed by Her Majesty from among the members of the Parliament and shall hold office at Her Majesty's pleasure",
      "with the approval of Her Majesty"—
      in clauses 44 and 46—
      "seek Her Majesty's approval",
      and
      "shall hold office at Her Majesty's pleasure".
      in clauses 44 and 46.
      I would not want the group of amendments to be represented as an attack on either Her Majesty or the monarchy. That would be a misreading of the intent behind them. It is true that my hon. Friend the Member for Falkirk, West and I hold certain views about the legitimacy of an hereditary institution exercising what should be democratic power in a democratic society. I for one have never understood those who argue for modernising the British constitution and who speak about sweeping away powers of hereditary peers, while at the same time talking about entrenching the powers of an hereditary monarch.

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      I very much take to heart my hon. Friend's arguments, particularly those on the 1974 election and what happened to Gough Whitlam in Australia. The future role of the monarchy is not at the heart of the amendments. The amendments focus on the Scottish Parliament's right democratically to elect Ministers who will hold office in the Scottish Government after 1999.
      The Bill technically says that the First Minister shall be appointed by Her Majesty and hold office at Her Majesty's approval. We know that that is a constitutional fiction. We know that the Queen will not in fact appoint anybody in the Scottish Parliament. She will do so only on the advice of the British Prime Minister and the British Cabinet of the day. We are really talking about the right of the United Kingdom Government and Cabinet to appoint the First Minister, other Ministers and junior Ministers in a Scottish Parliament. Without the approval of the UK Cabinet, that could not go ahead—otherwise, the provision would not be in the Bill. Even the right to hold office is contingent on the continuing approval of the British Government and Cabinet.
      There is danger in such a system. The hon. and learned Member for Orkney and Shetland (Mr. Wallace) said in an earlier debate that we cannot always assume that the British Cabinet will be in sympathy with the Scottish Parliament and necessarily want it to stand on its own feet, as the Minister would like.
      Mr. Tim Collins: I am following the hon. Gentleman's argument most closely. He seems to be making a case for a separate Scottish Head of State. If that is so, why is he sitting on the Government Benches and not with the Scottish nationalists?
      Mr. McAllion: I do not think that I have referred to the Head of State. My opinion on the Head of State—which I presume the hon. Gentleman seriously wants to hear, or he would not have asked—is that the Queen could do a lot worse than put herself forward for a referendum to endorse whether she should be the Head of State. The legitimacy of the Queen's role will always be questioned as long as she does not subject herself to the consent of the people.
      If I were a monarchist—which I am not—I would be arguing for the Queen to call a referendum on her role in the British constitution. If, in such a referendum, she received the endorsement of a huge majority, as everybody says she would, I am sure that that would improve her situation. Others of us would also like a referendum so that we could vote for the kind of Head of State we wanted. It is not a matter of treason to want a democratically elected Head of State—although, judging from the Tories' comments, it would sometimes seem so.
      The heart of the problem is the relationship between the United Kingdom Parliament and the Scottish Parliament. All the phrases—which the amendments would delete—mean this: the Scottish Parliament would be allowed to appoint its own Ministers only so long as they met with the approval of the Westminster Parliament and Government. That lies at the heart of my objections.
      Mr. Dominic Grieve: I think that the clauses about which the hon. Gentleman is complaining mean the complete opposite of what he is saying. The very reason why it is stipulated that the Scottish First
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      Minister will hold office at Her Majesty's pleasure is that that asserts absolutely and categorically that he has a direct link with the sovereign, which cannot be overridden by the United Kingdom Prime Minister in devolved matters. That is an essential protection under our present constitutional arrangements.
      Mr. McAllion: The hon. Gentleman is arguing as if the Queen had real constitutional powers. We have always been told that, of course, she does not have any real powers, because all constitutional power is exercised on the advice of the British Prime Minister. She would not dare to do anything on her own that a British Prime Minister would not allow her to do. Now, all of a sudden, the argument is very different. The hon. Gentleman is saying, "Yes, the Queen does have constitutional powers." He is agreeing with my hon. Friend the Member for Falkirk, West, who is concerned about the powers that an unelected monarchy exercises in the British constitution. I am increasingly concerned about the hon. Gentleman's tone and the way in which the argument is developing.
      Mr. John Hayes: The hon. Gentleman needs to consider the implications of what he is saying. As my hon. Friend the Member for Beaconsfield (Mr. Grieve) suggested, it matters not whether in practical terms the Head of State uses the power, but it matters from where the power is derived. The practical exercise of power and the source of power are two quite different things. The hon. Gentleman misunderstands the clauses.
      Mr. McAllion: The hon. Gentleman, who goes to Scotland on holiday only occasionally, also totally misunderstands the situation. I will tell him where the source of the power of appointment in a Scottish Parliament is. It is the people who elect that Scottish Parliament. There is no need for any reference to the United Kingdom Government, Cabinet or heir to the Head of State. A Scottish Parliament will be democratically legitimate because it will be elected by the Scottish people; it should be allowed freely to appoint its Ministers. That is the bottom line for those of us who agree with the Claim of Right and who believe that sovereignty rests with the people and not with the institution in Westminster.
      Worse than that, throughout the debates, there has been a tension between the UK Parliament wanting to keep control and a leash on what the Scottish Parliament might do, and those of us who want the Scottish Parliament to get on with the job of governing Scotland's domestic affairs free from interference, control and any dependence on the British Parliament.
      Dr. Fox: But the logic of that position is to move to independence, not devolution. The hon. Gentleman is arguing for a separate Scottish Parliament.
      Mr. McAllion: The Tories have a blanket approach to this debate. They envisage only two possibilities: either there is a toy town Parliament that is under the control of the British Parliament, or there is independence. They say that time and again, but they are wrong. There is a middle position, in which sovereignty is shared between the Scottish and United Kingdom Parliaments. The Scottish Parliament does not need to seek anyone's approval for

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      the appointment of Ministers—it has the approval of the Scottish people, which is all the sovereignty that is required. That is not to argue for independence.
      Earlier, we debated whether, if the Scottish Parliament broke down and did not work, that would lead to independence or whether it would benefit the Tories and lead us back to a United Kingdom unitary state. I tend to agree with the hon. Member for Banff and Buchan (Mr. Salmond): if the Scottish Parliament is a success, it will greatly increase the confidence among the Scottish people. Yes, the Scottish Parliament will argue for more and more powers to be devolved to it—there is nothing wrong with that. The real wreckers of the Scottish Parliament, who are sitting on the official Opposition Benches, do not want the Scottish Parliament to work, so they want the Bill to contain all these various control mechanisms.
      6.30 pm
      I have great sympathy with the idea that the number of Ministers should be restricted, not only in the Scottish Parliament but in this Parliament. The example of Nepal was cited, where of 130 Members 85 are Ministers. Everyone who is not a Minister wants to be one, so the Executive have complete control over the legislature, much as they have in this Parliament. As a point of principle, I want the Executive to be limited, but not to 10. I want a series of Departments to be set up under the Scottish Parliament, each with its own Minister, so that there are separate Departments for housing, health and local government. The Scottish Parliament should be able to decide on the number of Ministers and whether that number should be limited.
      There is much to be said for Bank Benchers having the power to hold the Executive to account. Any Parliament that is worth its salt has to have a number of independent Back Benchers. The trouble with the Westminster Parliament is that there are not enough independent Back Benchers—the Executive tightly control the Back Benchers, which is the wrong way round. We could easily ensure that the Scottish Parliament gets things the right way round, but that will not happen if we check and limit its powers to get on with its own business.
      The aim of the amendments is simple. It is for the Scottish Parliament—not for Westminster, the monarch of the United Kingdom state or anyone else—to decide who the Ministers are in the Government of the day in Scotland, as the Scottish Parliament alone will be elected by the Scottish people to fulfil that task.
      Mr. Donald Gorrie: There is only one Liberal Democrat amendment in this group. It is a tidying-up amendment that relates to amendment No. 275, which was tabled by the Conservatives. We fully support that amendment, as it deals with the important issue of the mental health of the First Minister. There is a risk that the First Minister will suffer from megalomania. We already have a Secretary of State who single-handedly decides where the Parliament should be, so there is no knowing what may happen when power goes to people's heads in the Scottish Parliament and they are corrupted, as all people in power always are. By the law of averages, Conservative Members must sometimes be right—on this occasion, we believe that they have a good point.
      We do not agree with the two other points that Conservative Members have made. First, we do not see why there should be a limit on the number of Ministers
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      in the Scottish Cabinet. The Scottish Parliament may decide to operate totally differently from Westminster—for example, there may be a flat structure rather than one that includes Secretaries of State and junior Ministers. It should have the scope to approach matters in a modern way and to organise its affairs as it wishes. The electorate will soon respond if there are jobs for the boys and girls, and will punish those responsible. Things can be left to the good sense not of the politicians, but of the electorate.
      Secondly, the Conservatives have moved against what we believe is one of the Bill's best proposals—the introduction of the concept, which is new to Britain, that Parliament must approve all the Ministers. That is a great step towards democracy, and it is a pity that the Conservatives want to remove it.
      I shall now deal with the points made by the hon. Members for Falkirk and for Dundee, East and West respectively, I think, although I never remember—
      Mr. John Home Robertson: There is a subtle difference.
      Mr. Gorrie: The difference is not so subtle.
      The hon. Members for Falkirk, West (Mr. Canavan) and for Dundee, East (Mr. McAllion) are two of the most refreshing hon. Members, and we have the greatest sympathy with the angle from which they are coming. On this occasion, however, although we understand their argument, we do not agree with it. We believe that the matter is covered in clause 43(1), which states:
      "the Parliament shall within the period allowed nominate one of its members for appointment as First Minister".
      That makes it clear that the Parliament chooses the First Minister. As I said, it also has the power to approve the Ministers.
      There is a good argument for continuing to mention the Queen in this context. People may feel that there should be a different constitutional structure, but that is a debate for another day. Under the existing structure, the fact that the Queen has the same relationship to the Scottish premier as she does to the British premier gives legitimacy and status to the Scottish Parliament. It demonstrates that the Scottish Parliament is not a toy town Parliament, a parish council, a regional council or a city chambers—it is a Parliament with a direct relationship to the Queen.
      The language may be archaic, but the point at issue is sound—the Scottish Parliament should choose the First Minister. The Parliament will meet to elect the First Minister; he or she will not have to drive in a horse and carriage across the road to Holyrood palace, although the Queen will do whatever she usually does and bless the premier, perhaps—I do not know, as I have never been present at such an occasion.
      Clause 47 deals with civil servants. Liberal Democrats strongly believe that a new atmosphere should be created, in which the civil servants are responsible to the Parliament and do not work for the Government only. This is not the appropriate time to ensure that that happens, but when the Parliament's methods of operation and Standing Orders are considered, we shall push strongly in that direction. Civil servants should continue

      195
      to advise Ministers, but they should also give information to and have much more open discussions with Members from all parties in the Scottish Parliament.
      Mr. Dalyell: Given the opening remarks of the hon. Member for Edinburgh, West (Mr. Gorrie), I have a sneaking suspicion that he has read the first leader in this morning's The Scotsman.
      I should like to ask my hon. Friend the Minister a question. If there is a conflict of opinion over a United Kingdom reserved matter, whose advice will the Queen take? Will she take the advice of the First Minister of the Scottish Parliament or that of the Prime Minister of the UK? If the matter is a devolved one, will the Queen take the advice of the Prime Minister or of the First Minister? Furthermore, if the matter is devolved but the UK Parliament is legislating under clause 27(7), whose advice will the Queen take—that of the Prime Minister or of the First Minister?
      Mr. Grieve: I broadly welcome clause 42. Its purpose is to emphasise the importance of the First Minister's role and his direct relationship with the sovereign. I appreciate the fact that the hon. Member for Dundee, East (Mr. McAllion) does not like the principles underlying that but, as has properly been said, unless there is a change in our constitutional arrangements, it will be wise to observe constitutional conventions, so as to ensure a good working relationship between Westminster and Edinburgh and to secure the status of the Edinburgh Parliament. The First Minister should be appointed by Her Majesty and hold office at her pleasure; that will be an important constitutional safeguard, which will be to the advantage of the Scots.
      In tabling amendment No. 254, my concern was that, although clause 42 (1) to (3) properly sets out the First Minister's role, subsections (4) and (5) go off the boil and refer to a curious hybrid entity. Subsection (4) mentions
      "a person designated by the Presiding Officer"
      in circumstances where, I infer, the Parliament has not nominated someone for appointment. I do not want to get involved in an exercise in semantics, but as the Secretary of State and the Minister for Home Affairs and Devolution are here, I ask them to consider carefully whether clause 42 is properly drafted. The references in it to the designation "by the Presiding Officer" of a First Minister ad interim, while Parliament makes up its mind, would be better transferred to clause 43.
      Clause 42 should define simply and neatly what the First Minister is supposed to do. Some other part of the Bill should emphasise what the designated First Minister is supposed to be. I assume that he or she is to be the person appointed to stand in for the First Minister if the office is vacant, and so is supposed to have all the powers, rights and obligations that the First Minister has. If that is the case, it would be sensible not to leave the wording in this hybrid condition. The legislation should make it clear that we are talking about a First Minister ad interim, who holds office at Her Majesty's pleasure exactly as any other Minister would do. As that is a non-party political issue, will the Minister for Home Affairs and Devolution look into it?
      In conclusion, there has been some discussion of the role of the advice given by the First Minister and by the Prime Minister in the event of conflict—a matter
      196
      raised by the hon. Member for Linlithgow (Mr. Dalyell). It is obvious that that is a real live issue. In defining the role of the First Minister, it is important that his status should be emphasised and that his direct position as the adviser of the Queen on matters relating to devolved issues should be at the forefront. In so far as clause 42 does not do so, I ask the Minister to look at it again and consider whether there should be some rejigging along the lines I have suggested in amendment No. 254 and the associated amendment, No. 255, which has not been selected because it relates to clause 43.
      Mr. Salmond: I am surprised that there was not more enthusiasm from the hon. Members for Dundee, East (Mr. McAllion) and for Falkirk, West (Mr. Canavan) for limiting the number of Ministers. If the Minister of the dome has any say in the appointments, I suspect that neither of those hon. Gentlemen is knocking at the door of ministerial office at present. Indeed, if the Minister of the dome has anything to do with it, the public gallery is the nearest that they may get to the Scottish Parliament. We all hope that that will not be the case and that more democratic processes will be allowed to be carried forward. However, we should be grateful to those two hon. Gentlemen for enabling us to have an important debate.
      Tory Members should not misunderstand the position that has been put forward in the amendments. It is not an attack on the monarchy, or the Queen as Head of State, but an attack on one aspect of the royal prerogative, particularly as it applies to the choice of Ministers. That is a legitimate argument. If the amendments were successful, the Queen would remain Head of State, but one aspect of the royal prerogative as regards the appointment of Ministers in a Scottish Parliament would have been removed.
      Certainly, it is difficult to argue with the logic of the argument of the hon. Member for Falkirk, West that the position of the First Minister, and indeed other Ministers, should depend on the approval and appointment of the Scottish Parliament as opposed to an aspect of the royal prerogative.
      6.45 pm
      We heard a fascinating interchange between the hon. Members for Beaconsfield (Mr. Grieve) and for Dundee, East. The latter argued that because the Queen normally takes advice from her first Minister, the Prime Minister, and therefore exercises the functions of the royal prerogative on the advice of that person, it could be a dangerous intervention in the ability of a Scottish Parliament to choose its own Ministers. On the other hand, the hon. Member for Beaconsfield says that the clause is some form of entrenchment because it would give the First Minister of a Scottish Parliament a direct line to the head of state and therefore would put that person as a Prime Minister inter pares with the United Kingdom Prime Minister in terms of the relationship with their Head of State.
      The interchange was fascinating and not one to which I had paid close attention before this debate. The question has to be resolved one way or the other and the Minister for Home Affairs and Devolution would do the Committee a service if he could adjudicate and tell us whether the interpretation of the hon. Member for

      197
      Beaconsfield or that of the hon. Member for Dundee, East was correct. The logic of the hon. Member for Falkirk, West is impeccable in the amendments and I am sympathetic to them, but that issue, which determines in practical terms the position of the Scottish Parliament and its standing with regard to the sovereign and her advisers, needs to be clarified.
      Finally and briefly, Conservative Members seemed concerned about protecting the people from the Scottish Parliament, but many people in Scotland voted for that Parliament to protect them from the Conservative party. The need to box in the Scottish Parliament's powers, as opposed to leaving them for the Standing Orders of a Scottish Parliament, betrays an underlying attitude that is not reconciled to the reality of that Scottish Parliament. The Conservative Front-Bench spokesmen, although perhaps not some of the Back Benchers, are still in a process of denial as far as the Scottish Parliament is concerned. They may not like hearing this, but the Conservative recovery will not start until that process of denial in Westminster comes to an end.
      Mr. McLeish: First, on the point made by the hon. Member for Woodspring (Dr. Fox) about mental health issues, I have consulted the Under-Secretary of State for Scotland, my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith) who is a neuro-surgeon, but he did not want to offer any suggestions to the Committee at this point. However, he suggested that the Scots are slightly better at differentiating between those who have a mental health problem and those who do not. I shall leave that as a question for the Committee. Interestingly, paragraph 9 of schedule 7 amends the Mental Health Act 1983, so the procedures to which the hon. Member for Woodspring referred will apply in a modified way to the Scottish Parliament. I will touch on some of the more serious issues when I refer to the amendments.
      To answer my hon. Friend the Member for Dundee, East (Mr. McAllion) who made a point about this—I do not know whether it was a slip—the Bill provides no role for the United Kingdom Government in the selection of the First Minister, the Scottish Ministers and junior Ministers, so there is no locus for this Parliament or this Government in that regard. I do not know whether that was his point.
      Mr. McAllion: Can my hon. Friend make clear the distinction to which the hon. Member for Banff and Buchan (Mr. Salmond) referred? If the Scottish Parliament chooses a First Minister and proffers that choice to the Queen for appointment, but the advice of the British Prime Minister is not to accept the choice, whose advice would the Queen follow?
      Mr. McLeish: The British Prime Minister would have no locus in that appointment.
      Mr. McAllion: My hon. Friend is clearly stating that the Queen would take the side of the Scottish Parliament, as set out in the Bill, against the British Prime Minister. Therefore, the British Prime Minister does not exercise sovereign control over the affairs of this country.
      Mr. McLeish: The Scottish Parliament would approve the appointment of the First Minister. The Presiding Officer would submit that appointment to the Queen and that would be it. We are talking about a substantial
      198
      devolution of power and responsibility to the Scottish Parliament. Devolution means devolution. It will be up to the Scottish Parliament to approve the First Minister, the Scottish Ministers and the junior Ministers. Of course, those appointments will then be approved by the Queen. It is straightforward and there are no complications.
      Mr. Dalyell: I will not ask my hon. Friend for an answer off the top of his head, but will he write to me, because this question is not as simple as he makes out? Clause 27(7) states:
      "This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland."
      In the light of that, I think that my hon. Friend should give me a considered answer in a letter.
      Mr. McLeish: I shall be happy to write to my hon. Friend, but we should make it clear that clause 27(7), and the debate on it, is about sovereignty and the ability of the Westminster Parliament to make laws in any area, devolved or reserved. This evening, we are talking about the First Minister, and I repeat that he or she will be selected by the Parliament after the election and the choice will be passed to the Queen by the Presiding Officer. That is the process.
      Mr. Salmond: The point made by the hon. Member for Linlithgow (Mr. Dalyell) is wrong, because it relates to legislation, not to appointments. However, is it not correct that, under clause 27(7), the UK Parliament could legislate to change the method of appointing the Scottish First Minister?
      Mr. McLeish: We have debated the issue and points have been exchanged across the Committee; the view taken depends on one's political perspective. We have made the point that this measure devolves substantial powers to Scotland—it is about devolution, not separation or independence.
      The Government cannot agree to amendments Nos. 44, 76 and 87 to 90, which were tabled by my hon. Friends the Members for Falkirk, West (Mr. Canavan) and for Dundee, East. The amendments would remove the involvement of Her Majesty in the appointment of the First Minister, other Scottish Ministers appointed under clause 44 and junior Ministers appointed under clause 46.
      The Scottish Ministers, headed by the First Minister and assisted by the junior Scottish Ministers, will exercise, on behalf of Her Majesty, her prerogative and other executive functions in relation to devolved matters. They will, in effect, be Her Majesty's Government in Scotland in relation to devolved matters. It is, therefore, entirely appropriate that the Queen should appoint the First Minister; that she should approve the appointment of other Ministers and junior Ministers to the Scottish administration; and that each of those appointees should hold office at her pleasure.
      The involvement of Her Majesty does not, of course, exclude the involvement of the Parliament. On the contrary, in line with the White Paper, the Bill provides a significant role for the Scottish Parliament in the appointment of the Scottish Executive. It is a point worth making that in this place, Ministers are not approved or, selected by the House, but the Scottish First Minister and the other Scottish Ministers will be approved and voted on by the Scottish Parliament.

      199
      That is a significant step forward in the scrutiny of the Executive. It starts at the foundation: the people will have spoken in electing Members of the Scottish Parliament who then, for the first time and unlike here, will have the ability to influence who represents the people of Scotland in ministerial posts. The significance of that step should not be lost on the Committee this evening. We see no need to amend the Bill in the way proposed, and I urge my hon. Friend the Member for Falkirk, West withdraw the amendment.
      I have listened carefully to the arguments put forward by my hon. Friends the Members for Falkirk, West and for Dundee, East in support of amendment No. 75. The nature of the post of junior Scottish Minister will differ from that of a member of the Scottish Executive. The nature of their task will be to assist the Scottish Ministers in the exercise of their functions. With that in mind, the Bill proposes a simpler mechanism for their appointment. Nevertheless, I am also aware that the Scottish Constitutional Convention recommended that all Ministers should require to be confirmed by simple majority of the full Parliament.
      I am therefore happy to accept the intention behind amendment No. 75 that the Parliament should be involved in the appointment of junior Scottish Ministers. I therefore undertake to bring forward an appropriate Government amendment on Report. With that undertaking, I invite my hon. Friend the Member for Falkirk, West not to press the amendment.
      The Government cannot agree to amendment No. 254. The provisions in the Bill are intended to ensure that there is always someone able to perform the functions of the First Minister and act as head of the Scottish Administration. In practice, it is expected that each First Minister will hold office until replaced by his or her successor. However, circumstances could arise where the post falls vacant, for example on the death of the First Minister or if the First Minister is temporarily unable to act—that may fall partly into the definition proposed by the hon. Member for Woodspring. In such an event, a caretaker can be appointed to fulfil the role, pending the nomination and appointment of a new First Minister.
      Mr. Grieve: I understand that point, but the clause as it stands conveys the impression—it may be no more than an impression—that the person who is acting is somehow a different animal from the First Minister, whereas my understanding is that an acting First Minister would still hold office at the Queen's pleasure and have all the First Minister's powers. That is the point that is opaque in the clause as it stands.
      Mr. McLeish: That is a reasonable reflection, but I must get on and cover some more of the points raised in the debate.
      The mechanism for appointment of such a caretaker reflects the exceptional and transitory nature of the appointment. It lacks the formalities of the appointment of the First Minister precisely so as to avoid conveying the impression that the person is the First Minister rather than a temporary incumbent. On balance, the Government believe that the arrangements should be kept as simple as possible. The Presiding Officer is well placed to be able
      200
      to judge which Member of the Scottish Parliament has the capacity and political credibility to fulfil that important role and I believe that it should be left to the Presiding Officer's discretion.
      The Government do not accept amendments Nos. 276 and 277. Amendment No. 276 would restrict the number of Scottish Ministers whom the First Minister can appoint. It would be inappropriate to do that, for a variety of reasons. The First Minister will have to seek the agreement of the Scottish Parliament; therefore, within the group of 129 MSPs, there is accountability and a chance to make a judgment on the number of Scottish Ministers. The Parliament will be able to withhold its approval if it thinks that there are too many nominations. In addition, through its control of salaries and allowances, the Parliament will be able to limit to a reasonable sum the expenditure on ministerial salaries.
      There is a feeling on both sides of the Committee that the matter should be left to the Parliament. It is a question of maturity and of adopting a sensible perspective. Ultimately, the First Minister and the Scottish Parliament will be accountable to the people of Scotland for their actions. That will, in our view, provide the proper means of ensuring that the size of the membership of the Scottish Executive is truly appropriate.
      Dr. Fox: We are missing a great opportunity. Such a self-denying ordinance would have sent a signal to the Scottish electorate that a blank cheque is not being handed over. I am sorry that the Minister cannot accept the amendment, but we shall press it to a Division.
      Mr. McLeish: The Committee is not offering a blank cheque to anyone. We are setting up a mature, serious and responsible Parliament, and it will be up to the Members of that Parliament to decide what Ministers are required to carry out the functions and represent the interests of the Scottish people. That is appropriate and proper. We do not share the Opposition's concerns, and I hope that they will not press the amendment.
      The Government cannot accept amendments Nos. 275 and 313, which are both unnecessary and inappropriate. The circumstances described are unlikely to arise in practice, and if they did, there are mechanisms in the Bill to deal with the problem. If at any time it appeared to the Presiding Officer that the First Minister was unable to act for whatever reason, including mental illness, it would be open to him or her under clause 42(4) to designate an MSP to exercise the functions of the First Minister.
      Should it become clear that the First Minister's inability to carry out his functions was not going to be merely temporary, he would be expected to resign. In the unlikely event of his being unwilling to resign, the Scottish Parliament could effectively remove him and his Executive through a vote of no confidence. That would require the First Minister to resign and would, in turn, lead to the appointment of a new First Minister. That may seem a drastic course of action, but the likely political reality is that there would be a general recognition of the need to address the problem and the Parliament could act to ensure that the matter was resolved without delay. In any case, I submit that clauses 42(4) and 43 provide a serious process to deal with a potential problem. First, there is a temporary acceptance and accommodation of the fact that the First Minister is unable to do the job; then there is a proper procedure to repair the situation.

      201
      The Government cannot accept amendment No. 278, which would remove from the First Minister some valuable flexibility to tailor the structure of the Scottish Administration to the demands upon it. In view of the time, I shall now sit down.
      Mr. Canavan: This is a somewhat historic occasion, as it has been many years since I last tabled an amendment that was accepted in principle by the Government. I thank my hon. Friend the Minister for that. I am pleased that the appointment of all Scottish Ministers, whether the First Minister, other Scottish Ministers or junior Ministers, will be subject to the approval of the Scottish Parliament. I am not convinced of the arguments for the role of the monarchy in the appointment of Ministers, but I shall not press that point. I shall seek to withdraw amendment No. 44 at the end of the debate and I look forward to the Government tabling an amendment similar to my amendment No. 75 on Report.
      Mr. Wallace: Junior Ministers will not be members of the Scottish Executive under the terms of clause 41. Will the Minister explain why?
      Mr. McLeish: The simple answer is that we shall have the First Minister and the Scottish Ministers, and we hope that the junior Ministers will have a supportive role in the work carried out by the other Ministers.
      Mr. Canavan: I beg to ask leave to withdraw the amendment.
      Amendment, by leave, withdrawn.
      Clause 42 ordered to stand part of the Bill.
      Clause 43 ordered to stand part of the Bill.

    Clause 44

      MINISTERS
      Amendment proposed: No. 276, in page 19, line 10, after 'appoint', insert
      'up to a total of ten'.—[Dr. Fox.]
      Question put, That the amendment be made:—
      The Committee divided: Ayes 131, Noes 365.

      Division No. 160]

      [6.59 pm

      AYES

      Ainsworth, Peter (E Surrey)

      Chapman, Sir Sydney

      Amess, David

      (Chipping Barnet)

      Ancram, Rt Hon Michael

      Chope, Christopher

      Atkinson, David (Bour'mth E)

      Clappison, James

      Atkinson, Peter (Hexham)

      Clark, Dr Michael (Rayleigh)

      Baldry, Tony

      Collins, Tim

      Bercow, John

      Colvin, Michael

      Beresford, Sir Paul

      Curry, Rt Hon David

      Blunt, Crispin

      Davis, Rt Hon David (Haltemprice)

      Body, Sir Richard

      Day, Stephen

      Boswell, Tim

      Dorrell, Rt Hon Stephen

      Bottomley, Peter (Worthing W)

      Duncan, Alan

      Bottomley, Rt Hon Mrs Virginia

      Duncan Smith, Iain

      Brady, Graham

      Evans, Nigel

      Brazier, Julian

      Faber, David

      Brooke, Rt Hon Peter

      Fabricant, Michael

      Browning, Mrs Angela

      Fallon, Michael

      Bruce, Ian (S Dorset)

      Flight, Howard

      Burns, Simon

      Forth, Rt Hon Eric

      Butterfill, John

      Fowler, Rt Hon Sir Norman

      202

      Fox, Dr Liam

      Moss, Malcolm

      Fraser, Christopher

      Nicholls, Patrick

      Gale, Roger

      Norman, Archie

      Garnier, Edward

      Ottaway, Richard

      Gibb, Nick

      Page, Richard

      Gillan, Mrs Cheryl

      Paice, James

      Goodlad, Rt Hon Sir Alastair

      Paterson, Owen

      Gorman, Mrs Teresa

      Prior, David

      Gray, James

      Randall, John

      Green, Damian

      Redwood, Rt Hon John

      Greenway, John

      Robathan, Andrew

      Grieve, Dominic

      Robertson, Laurence (Tewk'b'ry)

      Gummer, Rt Hon John

      Roe, Mrs Marion (Broxbourne)

      Hague, Rt Hon William

      Rowe, Andrew (Faversham)

      Hamilton, Rt Hon Sir Archie

      Ruffley, David

      Hammond, Philip

      St Aubyn, Nick

      Hawkins, Nick

      Sayeed, Jonathan

      Hayes, John

      Shepherd, Richard

      Heald, Oliver

      Simpson, Keith (Mid-Norfolk)

      Heathcoat-Amory, Rt Hon David

      Soames, Nicholas

      Horam, John

      Spelman, Mrs Caroline

      Howard, Rt Hon Michael

      Spring, Richard

      Hunter, Andrew

      Stanley, Rt Hon Sir John

      Jack, Rt Hon Michael

      Streeter, Gary

      Jenkin, Bernard

      Swayne, Desmond

      Syms, Robert

      Johnson Smith,

      Tapsell, Sir Peter

      Rt Hon Sir Geoffrey

      Taylor, Ian (Esher & Walton)

      Key, Robert

      Taylor, John M (Solihull)

      Kirkbride, Miss Julie

      Townend, John

      Laing, Mrs Eleanor

      Tredinnick, David

      Lait, Mrs Jacqui

      Trend, Michael

      Lansley, Andrew

      Tyrie, Andrew

      Letwin, Oliver

      Viggers, Peter

      Lewis, Dr Julian (New Forest E)

      Walter, Robert

      Lidington, David

      Wardle, Charles

      Lilley, Rt Hon Peter

      Waterson, Nigel

      Loughton, Tim

      Wells, Bowen

      Luff, Peter

      Whitney, Sir Raymond

      Lyell, Rt Hon Sir Nicholas

      Widdecombe, Rt Hon Miss Ann

      McIntosh, Miss Anne

      Winterton, Mrs Ann (Congleton)

      MacKay, Andrew

      Winterton, Nicholas (Macclesfield)

      Maclean, Rt Hon David

      Woodward, Shaun

      McLoughlin, Patrick

      Yeo, Tim

      Madel, Sir David

      Young, Rt Hon Sir George

      Maples, John

      Maude, Rt Hon Francis

      Tellers for the Ayes:

      Mawhinney, Rt Hon Sir Brian

      Mr. James Cran and Mr. John Whittingdale.

      May, Mrs Theresa

      NOES

      Abbott, Ms Diane

      Berry, Roger

      Ainger, Nick

      Best, Harold

      Ainsworth, Robert (Cov'try NE)

      Betts, Clive

      Allan, Richard

      Blears, Ms Hazel

      Allen, Graham

      Blizzard, Bob

      Anderson, Donald (Swansea E)

      Blunkett, Rt Hon David

      Anderson, Janet (Rossendale)

      Boateng, Paul

      Armstrong, Ms Hilary

      Borrow, David

      Ashton, Joe

      Bradshaw, Ben

      Atkins, Charlotte

      Brake, Tom

      Austin, John

      Brand, Dr Peter

      Baker, Norman

      Breed, Colin

      Ballard, Mrs Jackie

      Brinton, Mrs Helen

      Barnes, Harry

      Brown, Rt Hon Nick (Newcastle E)

      Barron, Kevin

      Brown, Russell (Dumfries)

      Battle, John

      Buck, Ms Karen

      Bayley, Hugh

      Burden, Richard

      Beckett, Rt Hon Mrs Margaret

      Burgon, Colin

      Begg, Miss Anne

      Burnett, John

      Beith, Rt Hon A J

      Butler, Mrs Christine

      Bell, Martin (Tatton)

      Byers, Stephen

      Bell, Stuart (Middlesbrough)

      Caborn, Richard

      Bennett, Andrew F

      Campbell, Alan (Tynemouth)

      Benton, Joe

      Campbell, Mrs Anne (C'bridge)

      Bermingham, Gerald

      Campbell, Menzies (NE Fife)

      203

      Campbell, Ronnie (Blyth V)

      Galloway, George

      Campbell-Savours, Dale

      Gapes, Mike

      Canavan, Dennis

      Gardiner, Barry

      Casale, Roger

      George, Andrew (St Ives)

      Caton, Martin

      George, Bruce (Walsall S)

      Chapman, Ben (Wirral S)

      Gerard, Neil

      Chaytor, David

      Gibson, Dr Ian

      Chidgey, David

      Godsiff, Roger

      Chisholm, Malcolm

      Goggins, Paul

      Clapham, Michael

      Golding, Mrs Llin

      Clark, Rt Hon Dr David (S Shields)

      Gordon, Mrs Eileen

      Clark, Dr Lynda

      Gorrie, Donald

      (Edinburgh Pentlands)

      Griffiths, Jane (Reading E)

      Clark, Paul (Gillingham)

      Griffiths, Nigel (Edinburgh S)

      Clarke, Eric (Midlothian)

      Griffiths, Win (Bridgend)

      Clarke, Rt Hon Tom (Coatbridge)

      Grocott, Bruce

      Clelland, David

      Grogan, John

      Clwyd, Ann

      Gunnell, John

      Coaker, Vernon

      Hain, Peter

      Coffey, Ms Ann

      Hall, Mike (Weaver Vale)

      Cohen, Harry

      Hall, Patrick (Bedford)

      Coleman, Iain

      Hamilton, Fabian (Leeds NE)

      Colman, Tony

      Hanson, David

      Connarty, Michael

      Harris, Dr Evan

      Cook, Frank (Stockton N)

      Harvey, Nick

      Cooper, Yvette

      Heal, Mrs Sylvia

      Corbyn, Jeremy

      Healey, John

      Corston, Ms Jean

      Heath, David (Somerton & Frome)

      Cotter, Brian

      Henderson, Doug (Newcastle N)

      Crausby, David

      Henderson, Ivan (Harwich)

      Cryer, Mrs Ann (Keighley)

      Hepburn, Stephen

      Cryer, John (Hornchurch)

      Heppell, John

      Cummings, John

      Hesford, Stephen

      Cunningham, Rt Hon Dr John

      Hewitt, Ms Patricia

      (Copeland)

      Hill, Keith

      Cunningham, Ms Roseanna

      Hinchliffe, David

      (Perth)

      Home Robertson, John

      Dafis, Cynog

      Hoon, Geoffrey

      Dalyell, Tam

      Hope, Phil

      Darling, Rt Hon Alistair

      Hopkins, Kelvin

      Darvill, Keith

      Howarth, Alan (Newport E)

      Davey, Valerie (Bristol W)

      Howarth, George (Knowsley N)

      Davidson, Ian

      Howells, Dr Kim

      Davies, Rt Hon Denzil (Llanelli)

      Hoyle, Lindsay

      Davies, Geraint (Croydon C)

      Hughes, Ms Beverley (Stretford)

      Davies, Rt Hon Ron (Caerphilly)

      Hughes, Kevin (Doncaster N)

      Davis, Terry (B'ham Hodge H)

      Hughes, Simon (Southwark N)

      Dean, Mrs Janet

      Hurst, Alan

      Dewar, Rt Hon Donald

      Hutton, John

      Dismore, Andrew

      Iddon, Dr Brian

      Dobbin, Jim

      Illsley, Eric

      Dobson, Rt Hon Frank

      Ingram, Adam

      Donohoe, Brian H

      Jackson, Ms Glenda (Hampstead)

      Doran, Frank

      Jackson, Helen (Hillsborough)

      Dowd, Jim

      Jamieson, David

      Drew, David

      Jenkins, Brian

      Drown, Ms Julia

      Johnson, Alan (Hull W & Hessle)

      Eagle, Angela (Wallasey)

      Johnson, Miss Melanie

      Eagle, Maria (L'pool Garston)

      (Welwyn Hatfield)

      Edwards, Huw

      Jones, Barry (Alyn & Deeside)

      Efford, Clive

      Jones, Helen (Warrington N)

      Ellman, Mrs Louise

      Jones, Ms Jenny

      Ennis, Jeff

      (Wolverh'ton SW)

      Etherington, Bill

      Jones, Jon Owen (Cardiff C)

      Ewing, Mrs Margaret

      Jones, Dr Lynne (Selly Oak)

      Fearn, Ronnie

      Jones, Martyn (Clwyd S)

      Fisher, Mark

      Jones, Nigel (Cheltenham)

      Fitzpatrick, Jim

      Kaufman, Rt Hon Gerald

      Fitzsimons, Lorna

      Keeble, Ms Sally

      Flynn, Paul

      Keen, Alan (Feltham & Heston)

      Follett, Barbara

      Keen, Ann (Brentford & Isleworth)

      Foster, Rt Hon Derek

      Kelly, Ms Ruth

      Foster, Don (Bath)

      Kemp, Fraser

      Foster, Michael Jabez (Hastings)

      Kennedy, Jane (Wavertree)

      Foster, Michael J (Worcester)

      Kilfoyle, Peter

      Galbraith, Sam

      King, Ms Oona (Bethnal Green)

      204

      Kingham, Ms Tess

      Pollard, Kerry

      Kirkwood, Archy

      Pond, Chris

      Kumar, Dr Ashok

      Pound, Stephen

      Ladyman, Dr Stephen

      Powell, Sir Raymond

      Laxton, Bob

      Prescott, Rt Hon John

      Lepper, David

      Primarolo, Dawn

      Leslie, Christopher

      Prosser, Gwyn

      Levitt, Tom

      Purchase, Ken

      Linton, Martin

      Quin, Ms Joyce

      Livingstone, Ken

      Rammell, Bill

      Livsey, Richard

      Rapson, Syd

      Llwyd, Elfyn

      Raynsford, Nick

      Lock, David

      Rendel, David

      Love, Andrew

      Robertson, Rt Hon George

      McAllion, John

      (Hamilton S)

      McAvoy, Thomas

      Robinson, Geoffrey (Cov'try NW)

      McCabe, Steve

      Rogers, Allan

      McCafferty, Ms Chris

      Rooker, Jeff

      McCartney, Ian (Makerfield)

      Rooney, Terry

      McDonagh, Siobhain

      Ross, Ernie (Dundee W)

      Macdonald, Calum

      Rowlands, Ted

      McFall, John

      Roy, Frank

      McGuire, Mrs Anne

      Ruane, Chris

      McIsaac, Shona

      Russell, Bob (Colchester)

      McKenna, Mrs Rosemary

      Russell, Ms Christine (Chester)

      Mackinlay, Andrew

      Ryan, Ms Joan

      McLeish, Henry

      Salmond, Alex

      Maclennan, Rt Hon Robert

      Salter, Martin

      McNamara, Kevin

      Sanders, Adrian

      McNulty, Tony

      Savidge, Malcolm

      MacShane, Denis

      Sawford, Phil

      Mactaggart, Fiona

      Sheerman, Barry

      McWilliam, John

      Short, Rt Hon Clare

      Mahon, Mrs Alice

      Simpson, Alan (Nottingham S)

      Mallaber, Judy

      Skinner, Dennis

      Mandelson, Peter

      Smith, Rt Hon Andrew (Oxford E)

      Marek, Dr John

      Smith, Angela (Basildon)

      Marsden, Gordon (Blackpool S)

      Smith, Miss Geraldine

      Marsden, Paul (Shrewsbury)

      (Morecambe & Lunesdale)

      Marshall, David (Shettleston)

      Smith, Jacqui (Redditch)

      Marshall, Jim (Leicester S)

      Smith, Llew (Blaenau Gwent)

      Marshall-Andrews, Robert

      Smith, Sir Robert (W Ab'd'ns)

      Martlew, Eric

      Snape, Peter

      Meacher, Rt Hon Michael

      Soley, Clive

      Meale, Alan

      Southworth, Ms Helen

      Michael, Alun

      Squire, Ms Rachel

      Michie, Bill (Shef'ld Heeley)

      Steinberg, Gerry

      Michie, Mrs Ray (Argyll & Bute)

      Stevenson, George

      Milburn, Alan

      Stewart, David (Inverness E)

      Miller, Andrew

      Stinchcombe, Paul

      Mitchell, Austin

      Straw, Rt Hon Jack

      Moffatt, Laura

      Stringer, Graham

      Moore, Michael

      Stuart, Ms Gisela

      Moran, Ms Margaret

      Sutcliffe, Gerry

      Morgan, Alasdair (Galloway)

      Swinney, John

      Morgan, Ms Julie (Cardiff N)

      Taylor, Rt Hon Mrs Ann

      Morgan, Rhodri (Cardiff W)

      (Dewsbury)

      Morris, Ms Estelle (B'ham Yardley)

      Taylor, Ms Dari (Stockton S)

      Moms, Rt Hon John (Aberavon)

      Taylor, David (NW Leics)

      Mowlam, Rt Hon Marjorie

      Thomas, Gareth (Clwyd W)

      Mudie, George

      Thomas, Gareth R (Harrow W)

      Murphy, Denis (Wansbeck)

      Timms, Stephen

      Naysmith, Dr Doug

      Tipping, Paddy

      Norris, Dan

      Todd, Mark

      O'Brien, Bill (Normanton)

      Tonge, Dr Jenny

      OHara, Eddie

      Touhig, Don

      Olner, Bill

      Trickett, Jon

      Öpik, Lembit

      Truswell, Paul

      Organ, Mrs Diana

      Turner, Dennis (Wolverh'ton SE)

      Osborne, Ms Sandra

      Turner, Dr Desmond (Kemptown)

      Palmer, Dr Nick

      Turner, Dr George (NW Norfolk)

      Pearson, Ian

      Twigg, Derek (Halton)

      Pendry, Tom

      Twigg, Stephen (Enfield)

      Pickthall, Colin

      Tyler, Paul

      Pike, Peter L

      Vaz, Keith

      Plaskitt, James

      Vis, Dr Rudi

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      Wallace, James

      Winnick, David

      Walley, Ms Joan

      Winterton, Ms Rosie (Doncaster C)

      Wareing, Robert N

      Wise, Audrey

      Watts, David

      Wood, Mike

      Welsh, Andrew

      Woolas, Phil

      Wray, James

      White, Brian

      Wright, Anthony D (Gt Yarmouth)

      Whitehead, Dr Alan

      Wyatt, Derek

      Wicks, Malcolm

      Williams, Alan W (E Carmarthen)

      Tellers for the Noes:

      Williams, Mrs Betty (Conwy)

      Ms Bridget Prentice and Mr. Greg Pope.

      Willis, Phil

      Question accordingly negatived.
      It being after Seven o'clock, THE CHAIRMAN, pursuant to the Order [9 February] and the Resolution [this day], put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
      Clause 44 ordered to stand part of the Bill.
      Clauses 45 to 47 ordered to stand part of the Bill.

    Clause 48

      EXERCISE OF FUNCTIONS
      Amendment made: No. 321, in page 21, line 14, at end add
      `after he ceases to be a Minister of the Crown'. —[Mr. McLeish.]
      Mr. Oliver Heald: I beg to move amendment No. 279, in page 21, line 14, at end add —
      `(7) Nothing in this Act shall permit Scottish Ministers to exercise any function or to enjoy any power in any part of England, Wales or Northern Ireland.'.
      The Chairman: With this, it will be convenient to discuss the following amendments: No. 310, in clause 51, page 22, line 10, leave out from 'enactment' to end of line 12.
      No. 305, in clause 52, page 22, line 13, at beginning insert '(1)'.
      Government amendment No. 322.
      No. 280, in page 22, line 29, at end add —
      '(2) Any dispute which arises between a Minister of the Crown and the Scottish Ministers as regards the exercise of powers in subsection (1) shall be resolved as a devolution issue in accordance with the provisions of Schedule 6.'.
      No. 286, in clause 59, page 25, line 2, after '(1),'insert
      `Subject to an affirmative resolution of both Houses of Parliament,'.
      Government amendment No. 323.
      No. 287, in page 25, leave out line 5.
      No. 288, in page 25, line 9, at end insert —
      '(1A) The provisions in subsection (1) above shall also apply to statutory functions exercisable by Scottish Ministers'.
      Government amendments Nos. 324 to 329, 306 and 330.
      No. 307, in clause 101, page 45, line 11, leave out `58 to 60' and insert '58 and 60'.
      Government amendments Nos. 331, 308 and 332.
      Mr. Heald: Before I discuss amendment No. 279, I should say that I have similar feelings to the hon. Member for Falkirk, West (Mr. Canavan), but in this case
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      about the Government's reaction to a substantial number of Conservative amendments in this group. I echo what my right hon. Friend the Member for Devizes (Mr. Ancram) said: we have not seen much of this, but it is good that the Government have considered and accepted the arguments for many of our amendments in this group.
      Amendment No. 286, which requires an affirmative resolution of both Houses in order to transfer additional functions from United Kingdom Ministers to Scottish Ministers, has been accepted in Government amendments Nos. 323 to 329 and Government amendment No. 306. I welcome the sight, on pages 1726 and 1728 of the Amendment Paper today, of amendments tabled by my right hon. Friend the Member for Devizes, me and other colleagues, to which the Secretary of State has added his name, in a constructive spirit. He has also tabled Government amendment No. 331, which is identical to our amendment No. 307. It is good to see that he has accepted the argument that the functions of the House should not be transferred to the Scottish Parliament without adequate scrutiny and debate in this place. We are glad that we have been able to help him to improve the Bill, and we should now like him to go a little further.
      7.15 pm
      The hon. Member for Dundee, East (Mr. McAllion) said earlier that, in this Committee, the Conservatives have not been trying to bring about an effective, workable Scottish Parliament; the amendment gives the lie to that claim, because it shows that the Conservative party has tabled amendments that even the present Government—not a Government who are very often minded to accept amendments—have accepted, and the Minister has had to accept the logic of our arguments in substantial measure in this group of amendments.
      Mr. Ernie Ross: A weakness.
      Mr. Heald: I would not accept that for a minute, and the hon. Gentleman knows it.
      The purpose of amendment No. 279 is to ensure that Scottish Ministers are not permitted to exercise functions or enjoy power in any way in England, Wales or Northern Ireland. It is obvious why that should be the case. Scottish Ministers are not directly accountable to this place. If they exercise functions in England or the other countries, it is impossible for constituency Members to challenge them or in any way to bring them to account. Therefore, I hope that the Minister can give an assurance tonight that Scottish Ministers will be unable to exercise functions or enjoy powers in England. Wales or Northern Ireland as a result of clause 48 or as a result of the Bill as a whole. If he wants to give me that assurance now, I should be happy to give way.
      Mr. McLeish indicated dissent.
      Mr. Heald: It looks as though he is saving that for later.
      Amendment No. 310 is designed to remove the exception that at present would require the UK Government to consent to the designation of an enterprise zone by Scottish Ministers, in clause 51(2). The amendment would stop the Government centralising

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      power over inward investment and important decisions about enterprise in the Department of Trade and Industry in London, and so the amendment would protect and enhance Scotland's ability to succeed in that area of enterprise.
      It is worth highlighting the success of recent years. One of the healthiest aspects of the Scottish economy has been the record levels of inward investment. The year 1995–96 was another record year for inward investment in Scotland. Inward investment has been a vital component in transforming the Scottish economy from being reliant on the old primary industries supported by taxpayers' subsidy to being very much at the cutting edge of the new and expanding high-tech silicon industry. In the year to March 1996, Locate in Scotland and the Scottish Office Education and Industry Department were able to attract to Scotland 84 inward investment projects involving planned investment of nearly £1 billion and the expected creation or safeguarding of more than 12,500 jobs.
      Although Scotland accounts for about 9 per cent. of the United Kingdom population, figures published by the Invest in Britain Bureau show that, in the past few years, more than 18 per cent. of all inward investment projects attracted to the United Kingdom and about a quarter of the new jobs associated with such projects have gone to Scotland. Britain receives more foreign investment from outside Europe than all the other European Union countries combined. In 1995–96, inward investment in Scotland created 1,000 jobs on average per month. In the five years to March 1996, Locate in Scotland recorded 400 inward investment projects involving planned investment of almost £3.5 billion and the expected creation or safeguarding of about 50,000 jobs.
      Mr. Ernie Ross: It will do as well under the Scottish Parliament.
      Mr. Heald: The hon. Gentleman claims that a Scottish Parliament will be able to build on that success. That is what this amendment is about.
      Mr. Rowe: Is my hon. Friend aware that one spurious reason for trying to impose on the south-east of England an entirely artificial creation called the regional development agency is that that will somehow help us to vie with Scotland and acquire silicon implants of our own?
      Mr. Heald: The regionalism argument is designed to defuse the West Lothian question. Opposition Members are concerned that the idea of regionalism is offered as some sort of solution to the West Lothian question. I know that the hon. Member for Dundee, West (Mr. Ross) believes that there is no such thing as the West Lothian question, but most senior Labour figures have acknowledged that such a question exists and needs to be addressed. It is wrong to implant in England a form of regionalism that is alien to it and to ignore the fact that England is a country like Scotland or Wales. As to my hon. Friend's point, I see no reason why a regional development agency should be imposed on Kent when the county may not want it.
      There has been inward investment success in Scotland. It has been linked to enterprise zones, which is the burden of this amendment. It would be wrong to sell the Scottish
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      people a false prospectus. The White Paper gave the impression that all enterprise would be devolved. It now seems from the Bill that the dead hand of Whitehall in the form of the Department of Trade and Industry will co-ordinate enterprise zones and may well act against Scotland's interest. We have moved the amendment in that spirit: it asks the Minister to provide assurances that enterprise in Scotland will be safe.
      Government amendment No. 332 seeks, at a very late stage in the proceedings, to reserve to the United Kingdom Parliament the Industrial Development Advisory Board for Scotland. Is that part of the DTI agenda to retain control over enterprise policies in Scotland? Does it fit with the policy approach that is set out and that the amendment seeks to defeat? I ask the Minister to provide those assurances. Will the co-ordination of enterprise zones in Scotland require the consent of the United Kingdom? Will the DTI retain control over inward investment packages and enterprise zones in Scotland? Does Government amendment No. 332 have the same intention, reserving the Industrial Development Advisory Board for Scotland to the United Kingdom Parliament? What are the Minister's intentions in that regard? I seek his assurances that Scotland will not be short-changed.
      Amendment No. 280—upon which amendment No. 305 is consequential—ensures that, when any disputes arise in respect of shared powers in clause 52 as to the prime responsibility for a particular issue, they will be resolved using the judicial procedures for devolution issues that are set out in schedule 6 to the Bill. A mechanism is clearly needed, and there seems to be no reason why the procedure in schedule 6 should not apply. What is the Minister's thinking on that important issue? Will he concede the logic of our argument in this area and agree to our amendments?
      The Government have already agreed to amendment No. 286—the first in the group—which would require an affirmative resolution of both Houses for subordinate legislation to transfer additional functions from United Kingdom Ministers to Scottish Ministers. Amendments Nos. 287 and 288 go a little further than that. Amendment No. 287 would permit the transfer of additional functions only on the basis of concurrent or shared powers with United Kingdom Ministers. There would be no further transfers solely to Scottish Ministers.
      That would provide some clarity. Throughout consideration of the Bill, Opposition Members have expressed concern that this is a slippery slope: it could lead to the transfer of function after function from the United Kingdom Parliament to the Scottish Parliament, and that ratchet effect would slowly drive the Scottish Parliament from being devolved to being independent.
      The Minister says that the Government are totally in favour of a devolved Parliament and that they have made it clear that they do not want separatism or independence. That is what he said in the previous debate. if that is so, it is surely right to provide some clarity about what functions may be devolved and how far the process can go. That would disabuse the Scottish Parliament from the outset of the notion that the process could lead to independence. I await the Minister's answer on amendment No. 287. That would provide clarity and ensure that the Scottish Parliament would devolve future powers only on a concurrent or a shared basis.

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      Amendment No. 288 follows the same theme. It says that it would be possible to transfer the sole statutory functions of Scottish Ministers so that they are concurrent powers shared with United Kingdom Ministers. In other words, there would not be a ratchet effect: we should move from a one-way street to a situation of allowing some interplay between the two Parliaments. That could occur if it is found that shared or concurrent powers would be helpful in areas where the Scottish Parliament has sole statutory functions at present.
      I ask the Minister: what is wrong with that? Why is it not possible to say now, with some certainty, that those are the limits within which functions will be transferred? There should be an element of flexibility, if necessary, to transfer powers that are solely Scottish to a joint and shared arrangement. I look forward to hearing the Minister's views on that subject.
      I have already mentioned Government amendment No. 332, which seeks to reserve the Industrial Development Advisory Board to the Westminster Parliament. We are concerned that that may interfere with Scotland's ability to continue its inward investment success. Therefore, we ask the Minister to explain why the measure is proposed at this late stage.
      Mr. Dalyell: Of course there will be a ratchet effect, and it will be a faster ratchet than most people imagine. Incidentally, I think that the first reference to the ratchet effect was by the late Enoch Powell, who died on Sunday. He spoke at great length in 1977–78 on precisely that mechanism.
      It is sheer pretence to think that a ratchet effect will not occur, and it will be helped greatly not only by Scottish National party Members of the Parliament, but by Labour Members, Liberal Members and indeed Conservative Members of the Parliament, because they will have to explain the inadequacies in the perceptions of their constituents and how those can be met, and they cannot be met with insufficient resources. The entire scenario for the ratchet effect is there.
      Mr. Heald: Does the hon. Gentleman see some hope in the fact that we have already been able to move the Minister from a position where additional functions could be transferred to Scottish Ministers simply by subordinate legislation of the Scottish Parliament, to a position where he has accepted the logic of our amendments, which require a resolution of the House of Commons, and that that should be by Order in Council?
      7.30 pm
      Mr. Dalyell: I do not wish to be rude or curt, but I see no hope at all. That is the blunt answer to the question. However, we must stick to clause 48. Subsection (2) omits any reference to the Solicitor-General or the junior Ministers. The reason for that, according to the Law Society, is unclear. The phrase "Scottish Minister" is used, and in terms of clause 41 that would include the First Minister, the Lord Advocate and the Solicitor-General. Can my hon. Friend clarify the situation in regard to clause 48(2)?
      My next question relates to the position of the civil service. Is the civil service to remain a Westminster function? Would it be possible for a UK Minister to give a direction to a civil servant in Scotland, which that civil servant would be obliged to follow, or would the
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      civil servant be answerable only to his own Scottish Ministers? Clause 47(1) appears to provide that Scottish Ministers can also appoint non-civil servants—that is, advisers.
      What happens when a UK Minister gives a direction to a Scottish civil servant that is contradictory to a direction given by a Scottish Minister? That is by no means a fanciful state of affairs. For example, let us take railway services, which are a UK matter. Suppose there was an environmental impact assessment of the extension of the west coast line. It may be the view of the Department of Transport that the entire scheme could be jeopardised if the information were made public—for instance, by a Scottish Minister under pressure from environmental groups to publish. That situation is quite likely, in one form or another.
      The question is who rules in that case—the UK Minister or the Scottish Minister? To whom does the civil servant give her or his loyalty? That is a important and practical question. Where a subordinate Parliament is created, and it is supposed that, above all, the kingdom should be kept united, it is impossible that the civil service should serve two organisations, which may have significantly different opinions. That subject must be addressed.
      Mr. Rowe: I share the gloom of the hon. Member for Linlithgow (Mr. Dalyell). I have no doubt that the measure represents the beginning of a ratchet that will eventually divide the United Kingdom. The Government have made considerable efforts to deceive themselves that that will not happen, but their efforts are set at naught by the schizophrenia demonstrated by my hon. Friend the Member for North-East Hertfordshire (Mr. Heald).
      One minute, my hon. Friend is desperately concerned to define and limit the powers of a Scottish Parliament by moving amendments to the Bill, and the next minute he is desperately concerned to give to Scotland unequivocally powers that the Government seem to wish to retain in Westminster. If such ambivalence is apparent on the Conservative Front Bench, the ambivalence among the other parties will be more extreme.
      Mr. Heald: Does my hon. Friend acknowledge that, as the White Paper sets out a prospectus—which has been voted on—for devolution of the whole area of enterprise, it is right at least to probe the Government when they seem to be resiling from that?
      Mr. Rowe: I could not support my hon. Friend more in his desire to find out what the Government are playing at. The Bill gives the appearance of having been carefully thought through, whereas the consequences of many decisions that have already been taken have not been addressed.
      I entirely support the aim of limiting the power of Scottish Ministers so that they will have no power or function in other parts of the United Kingdom. It is a great pity that we cannot do the same for Scottish Members of Parliament. I believe passionately that one of the great underlying weaknesses of the Bill is the prospect of Scottish Members of Parliament being debarred from examining, speaking on or voting on the matters that are closest to the everyday lives of their constituents in Scotland, but being free to roam carte blanche over constituencies in England, debating and voting on corresponding issues.

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      That matters not a fig in a Parliament where the majority is as large as it is now, but if the next general election results in a majority of, say, 16 or 30, and decisions about English health, education and so on are taken by Scottish Members of Parliament who have no accountability whatever south of the border, that will lead to enormous instability. We should define not only for Ministers but for Members what they are entitled to do.
      I am gloomy about the prospect. I have no doubt, and never have had, that Scotland is capable of running its own affairs effectively. I spent several years in the Scottish Office and was deeply impressed by the quality of my colleagues and of the institutions in Scotland. It is sad that, on a pretence that we are somehow preventing—
      The Second Deputy Chairman of Ways and Means (Mr. Michael Lord): Order. May I ask the hon. Gentleman to return precisely to the amendment. He is going rather wide of the mark, and there will be opportunities to discuss those matters on later amendments and new clauses.
      Mr. Rowe: I apologise, Mr. Lord, if I was wandering more widely. I support the proposition that the exact limits of the powers of a Minister of the Scottish Parliament should be defined unequivocally.
      Mr. Collins: I shall confine my remarks principally to amendment No. 279. The hon. Member for Linlithgow (Mr. Dalyell) famously placed on the table the West Lothian question, which highlighted the difficulties that would arise if Members of Parliament in the United Kingdom Parliament had responsibilities for matters relating to England, even though they were not sent there by their constituents in Scotland for that purpose. Amendment No. 279 deals with the difficulties that would arise in relation to Ministers. If there are difficulties in England about the role of MSPs, surely they would be even greater if there were any risk, however theoretical, that a Scottish Minister, accountable to an entirely different Parliament, could take decisions in England affecting English citizens.
      Mr. Alasdair Morgan: Can the hon. Gentleman give me an example of the difficulty that he foresees? I fail to see anything in the Bill that would allow a Scottish Minister to exercise any powers south of the border.
      Mr. Collins: If the hon. Gentleman is right in his assumption, he must, by definition, be in favour of amendment No. 279, because that merely seeks to include in the Bill the position that he understands to be the case and that we all hope to be the case. However, with legislation of this constitutional sensitivity, significance and importance, it is important to include in the Bill the exact understanding at the time that it is debated.
      Dr. Lynda Clark: The hon. Gentleman completely misunderstands the legal process here. The Bill gives Ministers certain powers, but no powers whatever in relation to English matters. Therefore, there is no need for the amendment.
      Mr. Collins: I am grateful to the hon. and learned Lady for saying what she says, but if that is her understanding
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      of the Bill, she and her hon. Friends on the Front Bench should have no objection in principle or in practice to amendment No. 279. It is important that her understanding and mine of the intention of the legislation should be stated clearly and without any ambiguity in the Bill.
      We have no doubt that the Bill will be enacted and that it will set in place a constitutional settlement for Scotland and its relationship with the rest of the United Kingdom, which is likely to endure for decades. Therefore, it is important at the start of this constitutional experiment, this immense voyage, that there be clarity.
      My understanding of the hon. and learned Lady's point is not that she objects to amendment No. 279, merely that she thinks that it is inherent in the Bill. If so, simply to clear up any misunderstanding, to avoid any difficulty, legal challenges or political confusion in future, those provisions should be stated clearly as amendment No. 279 sets out.
      Dr. Clark: My point is that there is no need for the amendment, because there is no possibility of any misunderstanding in a court of law or elsewhere. The Bill is perfectly plain. The powers derive entirely from the Bill. If no powers are given, no powers can exist, so the amendment is unnecessary. It would be equally daft having an amendment saying that no powers exist all over the place. No powers have been given in the Bill to Scottish Ministers in relation to English affairs. That must be the end of the matter.
      Mr. Collins: Again, I hear what the hon. and learned Lady says. The amendment seeks to amend clause 48, and clause 48(1) states:
      "Statutory functions may be conferred on the Scottish Ministers"
      The hon. and learned Lady is right to say that, elsewhere in the Bill, there is an interpretation of those powers, but nothing in clause 48 limits the powers that are granted in the way that she says. Therefore, our case is that clause 48 should state clearly that no functions can be exercised in England, Wales or Northern Ireland.
      The hon. Member for Linlithgow talked about the possible confusion relating to civil servants. They will be in the difficult position of being accountable to Ministers in two separate Governments. That is the nature of this part of the Bill. It concerns not just the establishment of a separate Parliament, which is the way in which public debate has hitherto always been conducted, but the establishment of an entirely separate Government. As the hon. Member for Linlithgow rightly pointed out, if there are two separate Governments, there is inherent in that situation the possibility of confusion and difficulty for civil servants.
      I give an example that builds on one given by the hon. Gentleman. What will happen where a document involves civil servants from several different Departments? In an attempt to achieve a coherent, common UK Government position, many issues cross departmental boundaries which affect civil servants working in the Scottish Office and in other UK Departments such as the Department of the Environment and the Department for Education and Employment. At the moment, civil servants know where they stand in the preparation and dissemination of such documents. They know that they are accountable, through

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      Ministers, ultimately to a United Kingdom Cabinet headed by a UK Prime Minister appointed by a UK Head of State and answerable to this UK Parliament.
      What will happen in future when there is a wish to have a common UK position? There must be many instances when, even after the establishment of a Scottish Parliament, it will be for the convenience of the Scottish people, as for those in the rest of the UK, that there should be commonality. We can all imagine the issues. There will be issues relating to, for example, the environment, transport links and exam procedures when some commonality will be convenient. There will be plenty of issues where there will be a common UK position.
      7.45 pm
      Mr. McLeish: The hon. Gentleman refers to the need for commonality in exams. Scotland has a separate education system. It is time served. It has been around for a long time. I think that the hon. Gentleman will accept, with a bit of humility, that this is a complex subject. We are talking about the administrative devolution of reserved powers. There are three types. First, Westminster and Holyrood can agree that certain functions will be completely devolved to the Scottish Executive. Secondly, some responsibilities and functions can be carried out concurrently. Other powers will be carried out in consultation between Westminster and Holyrood. The Bill contains the comfortable and attractive proposition that Westminster's legislative competence can be handed to Scotland by way of Executive devolution. What is the problem?
      Mr. Collins: I hear what the Minister says, and he is right to point out—I was not remotely seeking to pretend otherwise—that Scotland has and has had for a long time a separate examination system. However, I am sure that he will acknowledge that it remains the case, and will remain the case after the establishment of the Scottish Parliament, that there will be movement at primary and secondary levels, and particularly at higher and further levels, from one side of the border to the other, and there will continue to be points and purposes Where it will be sensible for there to be some co-ordination on education matters, as on others. I do not limit my point to education matters. I am talking about a range of other matters where common discussion is needed.
      My point was simply that discussion and the circulation of papers will happen not as it does now, within a UK civil service, accountable to a UK Government, but between two separate Governments. The issue that then arises, as was pointed out by the hon. Member for Linlithgow, is what will happen when a Minister in one Government takes a different view from a Minister in another about the dissemination, provenance and contents of a paper, assembled jointly by civil servants from two different Governments. There is a real possibility of civil servants being given conflicting advice.
      Mr. Heald: As my hon. Friend will know, clauses 83 and 84 make provision for cross-border public bodies. Clause 84(1) states:
      "Subordinate legislation may make provision in relation to a cross-border public body …enabling powers to be exercised or requiring duties to be performed by the Scottish Ministers instead of by a Minister of the Crown, or by the one or by the other, or by both jointly or by either with the agreement of or after consultation with the other".
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      That is the point that the Minister was making.
      Does my hon. Friend agree that, in that context, if powers may be exercised by Scottish Ministers, instead of by a Minister of the Crown, it is only right that there should be an assurance that nothing can be done by Scottish Ministers—no function performed, no power given—in respect of England, Wales or Northern Ireland? There is no accountability in the Scottish Parliament for what occurs in England, Wales and Northern Ireland.
      Mr. Collins: I am grateful to my hon. Friend for clarifying the matter. The issue at stake is whether there are any circumstances in which a Minister accountable to the Scottish Parliament can take decisions that affect citizens in the rest of the United Kingdom who have no say in, or influence over, his election to that Parliament, or over the actions, identity or philosophy of Scottish Ministers. It is an important philosophical question, and it is not an artificial question for my constituents in Cumbria.
      When I am at home in Kendal, we watch Border Television and we have access to a range of services. Sometimes, we are very conscious of the fact that we are a great deal closer to Edinburgh than to London. We are conscious that there will be occasions when people might well say that Cumbria should be governed by one of the cross-border public bodies, as it is already for the purposes of the ITV network. Amendment No. 279 is important because it would alleviate, or even remove, our worries that decisions affecting English citizens could be taken by Ministers who have no accountability to the people of England through the United Kingdom Parliament. That is a serious question, which I hope the Minister will seriously consider. He must not dismiss it lightly.
      If people felt that they had no control over those taking decisions affecting their lives, there would be a serious question of democracy in this country which could only cause great tension between Scotland and England, something that all Opposition Members are striving hard to minimise, rather than maximise.
      Mr. Gorrie: Three issues have emerged in the debate. First, there is the question of the amendments affecting industrial development powers, about which the Conservatives may have a point. We should like the Minister to make things clearer, as he seems to be reducing the power of the Scottish Parliament.
      Secondly, there is the question of the dual loyalty of civil servants—a point that I fail to grasp. It seems straightforward that civil servants who work for the Scottish Parliament and the Scottish Office will meet their Westminster counterparts about joint enterprises. They will then report back to their bosses in Holyrood or St. Andrew's house. The issue is clear cut; people will be serving two different Governments, working jointly, reporting back and doing what their political masters tell them. I see no problem in that.
      The third issue about which there has been much sound and fury is mentioned in the amendment. I do not enjoy any power, but I do enjoy Tory terminology. The amendment states:
      "Nothing in this Act shall permit Scottish Ministers to exercise any function or enjoy any power"—
      that is Tory terminology—
      "in any part of England, Wales or Northern Ireland."

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      I was dismayed when, this morning in Committee, the hon. Member for Glasgow, Kelvin (Mr. Galloway), who is no longer in his place, accused me℄if that is the right word℄of being a clever Edinburgh lawyer. I am not a lawyer and whether I am clever or not is a matter of opinion, but I do come from Edinburgh. My point is that there is a Latin legal phrase, which I do not know, but which the hon. and learned Member for Edinburgh, Pentlands (Dr. Clark) may be able to tell me, the gist of which is that, if one mentions certain things in a list, one opens up the possibility of other things that are not on that list entering the frame. An amendment that states that Scottish Ministers may not exercise functions in England, Wales or Northern Ireland opens up the possibility that they could exercise powers and functions in Germany, France, the Channel Islands and so on. The phrase is misguided.
      Mr. Heald: We do not mind if Ministers exercise power in Germany, but if they wish to exercise powers in England, they should be accountable. The only way that that can be done is by a Minister of the Crown under the auspices of this Parliament.
      Mr. Gorrie: I do not accept the hon. Gentleman's point. He is opening up a can of worms, and he is also preventing sensible co-operation.
      There are gloom merchants in the Chamber, such as the hon. Member for Linlithgow (Mr. Dalyell). Instead of Bloody Dalyell℄his famous ancestor℄we have Gloomy Dalyell, who may play as big a part in history as his ancestor. We also have gloom merchants in the Conservative party, who think that everything will be a disaster.
      Many of us think that there are opportunities, one of which is for constructive co-operation between the Scottish Parliament and Executive and the Westminster Parliament and Executive. There might be agreed, joint efforts in Cumbria or elsewhere in which there would be co-operation. If the amendment were passed, no Scottish Minister or Member of the Scottish Parliament could take part in any of those joint efforts. For example, the amendment would rule out the creation of a country park on either side of the border which was jointly managed from both countries.
      The amendment is misguided, and the answer℄as I have said before, with all due respect℄is for the English to think about how they wish to run their own affairs. They could then set up their own Parliament or regional assemblies. The sooner they do so, the better.
      Mr. Desmond Swayne: I had begun to doubt myself. Having intended to speak in favour of amendment No. 279, I began to have my doubts when I heard Labour Members question my hon. Friend the Member for Westmorland and Lonsdale (Mr. Collins). However, I have now returned to my former opinion℄even more starkly℄having heard the hon. Member for Edinburgh, West (Mr. Gorrie), who raises every fear that I had about the Bill.
      The Bill states:
      "Statutory functions may be conferred on the Scottish Ministers".
      216
      Having read the Bill in its totality, I would welcome the addition of the rider: "but not in so far as they might affect England, Wales and Northern Ireland." That seems entirely proper, and everything that the hon. Member for Edinburgh, West has said confirms that.
      It is difficult to confer a general duty on a Member of Parliament to hold the Executive to account when there remains a possibility℄albeit theoretical℄that the Executive are not accountable to him. That is a theoretical argument, but there is a more important argument which has more resonance in terms of public opinion. I would say to the hon. and learned Member for Edinburgh, Pentlands (Dr. Clark) that, in these matters, perceptions are even more important than reality.
      Even now, I am approached by constituents at meetings and in public℄in a most unwelcome, unsolicited and unhelpful way℄who share their observation that, "Now Scotland is getting its own Parliament, isn't it awful and awkward that we have a Government entirely dominated by Scottish Members?" I have to point out to them that their concern is quite illegitimate and that they have no proper grievance. Those who sit on the Treasury Bench have a mandate and are very properly there. I should hate it if a situation arose in which my constituents had a legitimate grievance, and amendment No. 279 would prevent that from happening. As said, perception is important in these respects, and the Committee has a duty to remove such sources of conflict and public discontent.
      Mr. Laurence Robertson: I endorse the amendments tabled by my right hon. and hon. Friends. Having sat through many hours of debate on the Government of Wales Bill and the Scotland Bill, I am worried about disputes, because both Bills have the potential to create a great many disputes. That is one reason why I support amendment No. 280, which gives guidance on how some disputes might be resolved.
      Amendment No. 279 concerns potential disputes, or at least confusion, so I support what my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) said about clarifying the Bill. We must make it plain that nothing in the Bill permits Scottish Ministers to exercise any functions℄or "enjoy" any power, if that word is preferable℄in any part of the United Kingdom other than Scotland. That helps to clarify the Bill.
      Mr. Alasdair Morgan: Does the hon. Gentleman not realise that, before the Conservatives get anywhere in Scotland, the penny must drop that no one there is vaguely interested in exercising power south of the border, or in seeing Scottish Ministers exercising power south of the border? The people of Scotland simply want to get on with running Scotland; we are not interested in what happens south of the border.
      8 pm
      Mr. Robertson: I am grateful for that intervention, which gives me the opportunity to say that, although what the hon. Gentleman says may be true in relation to the Scottish people, we in Westminster still face the prospect of Scottish Members coming down here and voting on purely English matters while we cannot vote on Scottish matters. So the potential for disputes still exists. I accept that the Scottish people have no selfish interest in matters outside Scotland, but the amendment attempts to clarify

      217
      the matter. If the hon. Gentleman says that there is no potential for problems, why should the clarification not be included in the Bill?
      Mr. Ancram: I was most interested in the intervention from a Scottish Nationalist, particularly given the geographical area that he represents, because it is precisely in areas near the border that we have all sorts of questions about rights over fishing on rivers and fishing within the Solway, all of which may well require decisions affecting cross-border issues. It seems strange that he should say that the Scots have no interest in those issues.
      Mr. Robertson: I thank my right hon. Friend for that intervention. Some issues may come under the jurisdiction of Scotland or England; I suggest that they should come under the jurisdiction of the Crown. That would be the best way to proceed.
      I also endorse what my hon. Friend the Member for North-East Hertfordshire said about enterprise zones. The statistics for Scotland are, indeed, impressive. If we are to engage in the new spirit of co-operation℄in which the Minister seems to be willing to engage, albeit to a limited extent℄we want the best for Scotland. I admit that the Conservative party does not want a Scottish Parliament in the first place, but we do want what is best for Scotland. Amendment No. 310 deals with that issue. Like Wales, Scotland has attracted a disproportionate amount of inward investment in relation to its population, and we want that to continue for the purpose of creating more jobs and more wealth.
      Mr. Alasdair Morgan: Will the Minister clarify amendment No. 322, which seems to remove from the clause the references to sections 10 and 14 of the Industrial Development Act 1982? I understand that section 14 of that Act does not apply to Scotland in any event, whereas section 10 does. Is it correct that the change to the clause does not diminish the powers of Scottish Ministers but merely enables UK Ministers also to exercise certain functions, and that we may therefore be in the lucky position of having two sets of Ministers?
      Mr. Heald: The amendment is purely technical. If the hon. Gentleman reads amendment No. 332, which seeks to reserve the Industrial Development Advisory Board to the Westminster Parliament for the first time at this late stage in the proceedings, he may be a bit more concerned.
      Mr. Morgan: I was about to express my concern about section 10 of the 1982 Act. It strikes me as strange that the powers under section 10 should be exercised by two sets of Ministers. Given all the talk about co-ordination and the need for a concordat to prevent different people from going in different directions, how does having two sets of Ministers exercising the same function improve that co-ordination?
      Mr. McLeish: The debate has ranged from the ultra-theoretical to the issue of public perception. It may therefore be useful to try to take the middle route and discuss realism and pragmatism in relation to some of the issues that have been dealt with.
      Before I deal with the amendments, may I say a word about clause 59 and the Executive devolution order generally? The clause enables subordinate legislation to
      218
      provide for the transfer to Scottish Ministers of statutory ministerial functions to be exercisable by them either instead of, or as well as, by the UK Minister. I alluded earlier to the three-tier structure of that system. It also provides for the adaptation of such functions by requiring UK Ministers to consult with, or obtain the agreement of, the Scottish Ministers before they exercise statutory functions.
      The Government have made available to hon. Members copies of a working draft of a clause 59 order, which I shall refer to as the "Executive devolution order". That draft order lists over 300 functions in relation to reserved matters, which will be exercisable in or as regards Scotland by the Scottish Ministers, or in relation to which Scottish Ministers will be consulted before the UK Minister exercises the function.
      The draft order covers functions to be transferred in a wide range of areas, including betting, gaming and lotteries, firearms licensing, extradition, lord lieutenants, the Government indemnity scheme and the acceptance of property in lieu of tax, the funding of Gaelic television and radio, tribunals, electricity supply, environmental impact assessments, civil nuclear installations, roads, railways, airports, public sector pension schemes, abortion clinics and medicines legislation. It covers a wide sweep of Executive responsibility. It also provides for Scottish Ministers to be consulted over the appointment of the Scottish member of the Independent Television Commission. It delivers the Government's commitments on Executive devolution made in the White Paper.
      Amendment No. 279 seeks to ensure that Scottish Ministers cannot exercise any function or power outside Scotland. It is inappropriate because it would prevent Scottish Ministers from exercising some functions that are essential for the discharge of their responsibilities in relation to Scotland.
      The functions transferred to Scottish Ministers by virtue of clauses 49 and 59 will be exercisable not just in Scotland but as regards Scotland. There will certainly be circumstances where functions exercisable as regards Scotland need to be exercised outside Scotland, including in England, Wales and Northern Ireland. For example, Scottish Ministers will need to exercise certain functions in relation to some public bodies based in England that have functions in Scotland, such as the Intervention Board for Agricultural Produce.
      Furthermore, Scottish Ministers will, on occasion, in exercising a devolved function, require to meet Ministers of the UK Government, for example in considering the formulation of policy, particularly where there are potential advantages in maintaining a degree of consistency in policy both north and south of the border. The hon. Member for Westmorland and Lonsdale (Mr. Collins) made a passing reference to that. At a practical level, Scottish Ministers will need to have the authority to pay the property and staffing costs of any representative office in London.
      Although the Scottish Parliament will only be able to make laws that form part of the law of Scotland, it should, and will, be able to confer functions on Scottish Ministers which are exercisable outwith Scotland. That reflects the fact that there will be circumstances where Scottish Ministers will need to exercise functions outside Scotland to secure the effective implementation of policy on devolved matters north of the border.

      219
      For example, it should be open to the Scottish Parliament to confer functions on Scottish Ministers of promoting a devolved matter such as Scottish sport outside Scotland. If Glasgow℄or Glenrothes in my constituency℄wants to launch a bid to host the Olympic games, Scottish Ministers should be able to do their bit in promoting that bid abroad. The amendment would prevent them from doing that. That may sound trite, but I am trying to emphasise the fact that the amendment could result in functions and activities being stifled.
      The amendment would deprive the Scottish Ministers of any powers to exercise functions outside Scotland, even if they clearly related to devolved matters in Scotland and formed part of Scots law. It is therefore quite inappropriate. For those reasons, I ask the right hon. Gentleman to withdraw amendment No. 279.
      Amendment No. 280 would provide that a dispute between a Minister of the Crown and the Scottish Ministers arising from the exercise of powers that the Minister of the Crown is permitted to exercise under clause 52 should be dealt with as a devolution issue under the provisions of schedule 6. I shall explain why I do not think that such a provision is necessary, or would be an appropriate use of the procedures in schedule 6.
      Clause 52 provides for a limited number of exceptions to the general rule that functions transferred to the Scottish Ministers by virtue of clause 49 will cease to be exercisable by Ministers of the Crown in or as regards Scotland. In a number of cases, it makes sense for Ministers of the Crown to be able to continue to exercise certain powers as well as the Scottish Ministers. Almost all the powers concerned involve the provision of grants or loans from the departmental resources of the Ministers of the Crown, for transport infrastructure, certain scientific research, grants and loans to industry and road safety measures. Clause 52 also enables UK Ministers to continue the levy scheme used to promote the export of wool textiles.
      Scotland will continue to benefit from the United Kingdom Government's legitimate continuing interest in supporting such activities in Scotland. Given the nature of the powers concerned, there is very little likelihood of any significant dispute about how they are exercised. Our view is that any necessary co-ordination on these matters between the Scottish Executive and the relevant Department in Whitehall should be carried out on a non-statutory basis, and any dispute should be resolved in the same way. That is in line with the Government's approach to co-ordination between the Scottish Executive and Whitehall generally.
      I believe that any amendment to impose a statutory procedure for dispute resolution would be unnecessary and inconsistent with our general approach to the future management of the relationship between the Scottish Executive and United Kingdom Departments.
      Mr. Heald: If there is a dispute about the prime responsibility for one of those issues, and if agreement cannot be reached, how is it to be resolved?
      Mr. McLeish: That is another timely intervention. Schedule 6 deals with devolution issues that are confined to judicial issues, and are intended to police the boundaries of the devolution settlement. Obviously, if a
      220
      dispute arising from the exercise of functions referred to in clause 52 raised such questions, they could be dealt with as devolution issues as the Bill is currently drafted. For example, any question whether a Minister of the Crown had gone beyond what is authorised by clause 52 and was therefore purporting to exercise a function that was a devolved matter would fall within the definition of a devolution issue under schedule 6(1)(f).
      However, in the unlikely event of other disputes arising out of the exercise of the shared powers under clause 52, they would fall to be resolved under the non-statutory arrangements that I have described, because they would be of a policy rather than a judicial nature. There is an important distinction between matters that relate to devolution issues and justiciable factors concerning the boundaries of the settlement, and matters that clearly relate to policy.
      Amendment No. 305 is purely consequential on amendment No. 280, as it simply tidies up the numbering of the subsections in clause 52.
      Amendments Nos. 280 and 305 are unnecessary and inappropriate, and I invite the Committee to reject them.
      I can be more positive about amendment No. 286, and the consequential amendment No. 307, which raise a valid point that I accept in principle. Amendment No. 286 seeks to ensure that subordinate legislation under clause 59 is subject to an affirmative resolution of both Houses of Parliament.
      The Bill currently provides that subordinate legislation under clause 59 can be made by Her Majesty by Order in Council or by a Minister of the Crown by order. Under the Bill, subordinate legislation is subject to the negative resolution procedure in both Houses of the United Kingdom Parliament and in the Scottish Parliament, although it could be subject to affirmative procedure if the person making it were so to choose.
      Given the importance of Executive devolution orders, I agree that it would be more appropriate for subordinate legislation under clause 59 to be made only by Her Majesty by Order in Council, and for it to be subject to an affirmative resolution of both Houses of Parliament, which is the point made by the right hon. Member for Devizes and his Front-Bench colleagues. Subordinate legislation must also be subject to an affirmative resolution of the Scottish Parliament: there can be no question of imposing functions on the Scottish Executive without the equal agreement of the Scottish Parliament.
      An Order in Council, affirmative resolutions of both Houses and an affirmative resolution of Holyrood would require consensus and agreement, so I hope that that will allay the fears of Opposition Members about conflicts that may arise. Government amendments Nos. 306, 308, 323, 324 and 329 to 331 make the changes necessary to achieve that, and are all related to this key principle.
      8.15 pm
      Unfortunately, I cannot take such a sympathetic view of amendment No. 287, and I ask the Committee to resist it. It strikes at the heart of clause 59, and of our proposals for Executive devolution. It would remove the provision that allows statutory functions of UK Ministers of the Crown to be exercisable in or as regards Scotland by the Scottish Ministers instead of by the UK Minister. Although it would leave the possibility for functions to be exercisable concurrently by Scottish Ministers and by

      221
      UK Ministers, it would not allow a straightforward transfer of functions from the UK Minister to the Scottish Ministers.
      I referred earlier to the three tiers of the arrangement. It is eminently sensible for the affirmative resolution procedure to take place and for the transferred functions to be wholly exercised by Ministers of the Scottish Parliament. The amendment is unacceptable, because it would result in an unnecessary and unworkable duplication of powers in relation to Scotland. Clause 59 already provides for functions to be exercised concurrently if the UK Government and the Scottish Executive agree that that is the right approach.
      An order under clause 59 cannot be made without agreement. We fully recognise that concurrent exercise of functions will be the right approach when it is necessary to ensure compliance with European obligations. However, that can be provided for in the order itself: there is no need for the legislation to require that such functions can be transferred only on a concurrent basis.
      Amendment No. 288 is unacceptable because it seeks to provide a mechanism for functions exercised by the Scottish Ministers in relation to devolved matters to be exercisable in or as regards Scotland by UK Ministers. That would be quite contrary to the scheme of devolution set out in the Bill. The right hon. Member's objective may be to probe us on whether functions that have been made exercisable in or as regards Scotland by the Scottish Ministers by an order under clause 59 should be capable of being transferred back to a UK Minister.
      I am willing to consider whether any additional provision is needed to deal with that scenario, and what the nature of any such provisions should be. In any event, any re-transfer should be subject to the agreement of both Westminster and the Scottish Parliament. In view of that, I should be grateful if the right hon. Member would not press amendment No. 288.
      Amendment No. 310 would remove the requirement for Treasury consent to the designation of an enterprise zone by the Scottish Ministers. We consider that that would be wrong, because of the tax privileges conferred by enterprise zone status.
      Clause 51 removes requirements for UK Ministers to agree to, or be consulted about, the exercise of functions by the Scottish Ministers by virtue of clause 49. It would clearly be inappropriate for such controls to be maintained over functions that relate to devolved matters. I hope that hon. Members will agree that amendment No. 310 is inappropriate.
      Government amendment No. 322 amends clause 52, which enables the UK Government to continue to share certain powers in relation to devolved matters. It makes two amendments to the reference to the Industrial Development Act 1982. It removes a reference to section 14, which does not apply in Scotland. It also deletes the reference to section 10, which concerns the Industrial Development Advisory Board. That body is responsible for advising the President of the Board of Trade about certain powers to provide financial assistance to industry.
      We propose that the board should be reserved, as there is already a parallel Scottish body, the Scottish Industrial Development Advisory Board, which was established under quite different legislation. SIDAB rather than IDAB should be the appropriate source of advice for the Scottish Ministers. The effect of reserving IDAB is that ministerial
      222
      powers in respect of the board set up under section 10 of the 1982 Act will remain with the United Kingdom Government.
      Mr. Ancram: Waffle.
      Mr. McLeish: One of those bodies advises the Secretary of State for Scotland on industrial development. It examines applications for regional selective assistance from indigenous companies and inward investment where the amount of grant likely to be offered is more than £250,000. An identical organisation services the President of the Board of Trade down south.
      Mr. Dalyell: The argument is difficult to follow, although I am not making a criticism. Have the Scottish Office and the Minister satisfied the Law Society℄they may well have℄that the reasons for the joint-exercise provision need to be made clear?
      Mr. McLeish: I hope that the Law Society will be satisfied. My hon. Friend has asked for clarification; we are trying to clarify something that is not clear in the Bill as it stands, and I think that, in relation to the two organisations, it makes sense for us to proceed on the basis that I have outlined.
      Mr. Alasdair Morgan: The fact that the Industrial Development Advisory Board is included in the list of bodies with reserved powers suggests to me that the board will still have some functions with regard to Scotland, which will remain reserved.
      Mr. McLeish: Let me allay the hon. Gentleman's fears. Ours is a genuine tidying-up operation in relation to two organisations, one servicing the President of the Board of Trade and the other servicing℄currently℄the Secretary of State, but in future the First Minister of the Scottish Executive. We are simply saying that the position should be made clear in schedule 5. Nothing is being lost. We have a powerful advisory body, which will continue. It is replicated in the south, in relation to the President of the Board of Trade.
      The effect of reserving the IDAB is that the ministerial powers in respect of the board that were set up under section 10 of the Industrial Development Act 1982 will remain with the United Kingdom Government. There is no need for them to be shared, and the reference in clause 52 should therefore be deleted.
      Clause 52 provides for a limited number of exceptions to the general rule that functions transferred to the Scottish Ministers by virtue of clause 49 will cease to be exercisable by Ministers of the Crown in or as regards Scotland. In a number of cases, it makes sense for Ministers of the Crown to be able to continue to exercise certain powers alongside the Scottish Ministers.
      Nearly all the powers concerned involve the provision of grants or loans from the departmental resources of the Ministers concerned, for matters such as transport infrastructure℄to which I referred earlier℄scientific research, industry and road safety measures. The clause also allows United Kingdom Ministers to continue to impose the various levies that we have described. In all those matters, the United Kingdom Government have a legitimate continuing interest in supporting activities throughout the UK, from which Scotland should continue to benefit.

      223
      Amendment No. 332 would add the Industrial Development Advisory Board to schedule 5, which deals with reserved matters. It is a technical amendment, designed simply to help to ensure that the board's role in advising the President of the Board of Trade remains entirely a matter for the UK Government and the UK Parliament. The board is established under the Industrial Development Act 1982, under which it advises the President of the Board of Trade on the exercise of certain powers under that Act to give financial assistance to industry.
      As the Bill is currently drafted, the board would fall within the devolved classification involving financial assistance for industry. It would therefore be treated as a cross-border public body, and would share certain functions with the separate Scottish Industrial Development Advisory Board. We consider that it would make more sense for the UK body's activities to remain a matter for the UK Parliament, for functions relating to it to be a matter for the UK Government and for the Scottish body℄which will be fully devolved℄to advise Scottish Ministers. Amendments Nos. 322 and 332 will enable that to happen.
      Mr. Heald rose—
      Mr. Dalyell: On a point of order, Mr. Lord. Is it in order for us to discuss clause 53 stand part?
      The Second Deputy Chairman: When we reach it.
      Mr. Heald: I listened carefully to what the Minister said, but℄certainly in respect of amendment No. 279℄he did not really deal with the point raised by my hon. Friends the Members for Faversham and Mid-Kent (Mr. Rowe), for Westmorland and Lonsdale (Mr. Collins), for Tewkesbury (Mr. Robertson) and for New Forest, West (Mr. Swayne). They asked how it was right for there to be cross-border public bodies and powers that, as a result of subordinate legislation, might be exercised by Scottish Ministers in respect of England℄or, indeed, Wales or Northern Ireland℄when there would be no accountability to this Parliament.
      The Minister said that some functions relating solely to Scotland might be required to be exercised in England, Wales or Northern Ireland. In a spirit of conciliation, let me offer him the chance to give me the assurance that Scottish Ministers shall not be permitted to exercise any function other than as regards Scotland, or enjoy any power in England, Wales or Northern Ireland.
      We seek that for reasons of accountability. The Minister will understand our point if he looks at clauses 83 and 84. Indeed, he described the workings of those clauses rather well himself. If Scottish Ministers are indeed to deal with certain functions in respect of England, perhaps the Minister will justify that. Perhaps, in relation to amendment No. 279, he will also consider the issue of fishing in the border area℄in rivers such as the Tweed and the Esk, and in sea waters off the coasts of Scotland and England. Is he really saying that such matters could be dealt with solely by Scottish Ministers?
      Mr. Grieve: I was interested in clause 99, which has a bearing on the issue that the hon. Gentleman has raised.
      224
      One reading of the clause is that, unless Scottish Ministers are appointed to the Privy Council, they will have no say in the operation of the fisheries on the Esk or the Tweed.
      Mr. Heald: Clause 99 states:
      "Her Majesty may by Order in Council make provision for regulating fishing for salmon, trout, eels and freshwater fish in the River Tweed and the River Esk."
      No doubt that is due to a proper concern that fishermen on the English side of the Tweed and at the English end of the Esk might wish to fish on Sunday, and might not be able to do so if fishing were regulated solely by Scots law. That is not the only issue of its kind, however. A range of cross-border issues may arise, not just in relation to rivers but in relation to sea water. I ask the Minister for an assurance in the few moments that remain.
      We welcome what the Minister said about the amendments on which he accepts our arguments, but we continue to press him on the others. We ask him if he cannot find some way of meeting the case that the Opposition have made. He has gone a certain way towards that, but he has not gone far enough, and we will divide the Committee unless we are satisfied with the assurances that he gives us now.
      Mr. Dalyell: As the guillotine is coming down and this is our only opportunity, may I ask about the difficulties that might arise between the two Parliaments? Let us suppose that a future EC directive addressed matters that fell within the competence of a Scottish Parliament. That directive might be implemented by an Act of that Scottish Parliament, or an Act of a Scottish Executive, or a United Kingdom Minister under section 2℄
      The Second Deputy Chairman: Order. The hon. Gentleman cannot discuss clauses that we have not yet reached. I call the Minister.
      Mr. Dalyell: On a point of order, Mr. Lord. Let me just register the fact that this is a travesty of parliamentary scrutiny.
      The Second Deputy Chairman: The Committee is discussing the Bill under the programme that has been agreed.
      Mr. McLeish: I am not sure that I can give the hon. Member for North-East Hertfordshire (Mr. Heald) much more reassurance, but let me say something about amendment No.279.
      I think that there is an impression that, once the Parliament is there, we will organise ourselves into marauding groups that will want to nip down to Liverpool℄to cross the border, do a bit of pillaging, do a bit of legislating and return to the Parliament. That may figure prominently in some of the fantasies of Opposition Members, but the reality will be slightly different.
      In every instance, we have said that this will be about agreement and consensus. If we are transferring functions in the three-tier framework that I have described, it will all be about agreement in both Houses. It will be about affirmative resolutions. It will be about seeking agreement and, of course, about accountability. Any decision by both Houses in Westminster to transfer functions to the Scottish Executive will be made on the basis of agreement in this House, and all hon. Members will participate in that. I therefore argue that agreement can be reached.

      225
      There will be good will, but we have built in affirmative resolution procedures. There is an Order in Council to deal with the matter. Things have to be done by agreement. That is the important consideration behind much of the Bill.
      Mr. Heald: The Minister has moved but, sadly, not enough.
      Question put, That the amendment be made:—
      The Committee divided: Ayes 134, Noes 364.

      Division No. 161]

      [8.29 pm

      AYES

      Ainsworth, Peter (E Surrey)

      Heathcoat-Amory, Rt Hon David

      Amess, David

      Horam, John

      Ancram, Rt Hon Michael

      Howard, Rt Hon Michael

      Arbuthnot, James

      Hunter, Andrew

      Atkinson, David (Bour'mth E)

      Jack, Rt Hon Michael

      Atkinson, Peter (Hexham)

      Jenkin, Bernard

      Baldry, Tony

      Johnson Smith,

      Beggs, Roy

      Rt Hon Sir Geoffrey

      Beresford, Sir Paul

      Key, Robert

      Blunt, Crispin

      Kirkbride, Miss Julie

      Body, Sir Richard

      Laing, Mrs Eleanor

      Brady, Graham

      Lait, Mrs Jacqui

      Brazier, Julian

      Lansley, Andrew

      Brooke, Rt Hon Peter

      Leigh, Edward

      Browning, Mrs Angela

      Letwin, Oliver

      Burns, Simon

      Lewis, Dr Julian (New Forest E)

      Butterfill, John

      Lilley, Rt Hon Peter

      Cash, William

      Loughton, Tim

      Chapman, Sir Sydney

      Luff, Peter

      (Chipping Barnet)

      Lyell, Rt Hon Sir Nicholas

      Chope, Christopher

      McIntosh, Miss Anne

      Clappison, James

      MacKay, Andrew

      Clark, Rt Hon Alan (Kensington)

      Maclean, Rt Hon David

      Clark, Dr Michael (Rayleigh)

      Madel, Sir David

      Clarke, Rt Hon Kenneth

      Maples, John

      (Rushcliffe)

      Maude, Rt Hon Francis

      Collins, Tim

      Mawhinney, Rt Hon Sir Brian

      Colvin, Michael

      May, Mrs Theresa

      Cormack, Sir Patrick

      Moss, Malcolm

      Cran, James

      Nicholls, Patrick

      Curry, Rt Hon David

      Norman, Archie

      Davis, Rt Hon David (Haltemprice)

      Ottaway, Richard

      Dorrell, Rt Hon Stephen

      Page, Richard

      Duncan, Alan

      Paice, James

      Duncan Smith, Iain

      Paisley, Rev Ian

      Evans, Nigel

      Paterson, Owen

      Faber, David

      Prior, David

      Fabricant, Michael

      Randall, John

      Fallon, Michael

      Redwood, Rt Hon John

      Flight, Howard

      Robathan, Andrew

      Forth, Rt Hon Eric

      Robertson, Laurence (Tewk'b'ry)

      Fowler, Rt Hon Sir Norman

      Roe, Mrs Marion (Broxbourne)

      Fox, Dr Liam

      Ross, William (E Lond'y)

      Fraser, Christopher

      Rowe, Andrew (Faversham)

      Gale, Roger

      Ruffley, David

      Garnier, Edward

      St Aubyn, Nick

      Gibb, Nick

      Sayeed, Jonathan

      Gill, Christopher

      Shepherd, Richard

      Gillan, Mrs Cheryl

      Simpson, Keith (Mid-Norfolk)

      Goodlad, Rt Hon Sir Alastair

      Soames, Nicholas

      Gorman, Mrs Teresa

      Spelman, Mrs Caroline

      Gray, James

      Spring, Richard

      Green, Damian

      Stanley, Rt Hon Sir John

      Greenway, John

      Streeter, Gary

      Grieve, Dominic

      Swayne, Desmond

      Gummer, Rt Hon John

      Syms, Robert

      Hamilton, Rt Hon Sir Archie

      Tapsell, Sir Peter

      Hammond, Philip

      Taylor, John M (Solihull)

      Hawkins, Nick

      Thompson, William

      Hayes, John

      Townend, John

      226

      Tredinnick, David

      Widdecombe, Rt Hon Miss Ann

      Trend, Michael

      Willetts, David

      Tyrie, Andrew

      Winterton, Mrs Ann (Congleton)

      Viggers, Peter

      Winterton, Nicholas (Macclesfield)

      Walter, Robert

      Woodward, Shaun

      Yeo, Tim

      Wardle, Charles

      Young, Rt Hon Sir George

      Waterson, Nigel

      Wells, Bowen

      Tellers for the Ayes:

      Whitney, Sir Raymond

      Mr. Oliver Heald and Mr. Stephen Day.

      Whittingdale, John

      NOES

      Abbott, Ms Diane

      Clarke, Eric (Midlothian)

      Ainger, Nick

      Clarke, Rt Hon Tom (Coatbridge)

      Ainsworth, Robert (Cov'try NE)

      Clelland, David

      Allan, Richard

      Clwyd, Ann

      Anderson, Donald (Swansea E)

      Coaker, Vernon

      Anderson, Janet (Rossendale)

      Coffey, Ms Ann

      Armstrong, Ms Hilary

      Cohen, Harry

      Ashton, Joe

      Coleman, Iain

      Atkins, Charlotte

      Colman, Tony

      Austin, John

      Connarty, Michael

      Baker, Norman

      Cook, Frank (Stockton N)

      Barnes, Harry

      Cooper, Yvette

      Barron, Kevin

      Corbyn, Jeremy

      Battle, John

      Corston, Ms Jean

      Bayley, Hugh

      Cotter, Brian

      Beckett, Rt Hon Mrs Margaret

      Crausby, David

      Begg, Miss Anne

      Cryer, Mrs Ann (Keighley)

      Beith, Rt Hon A J

      Cryer, John (Hornchurch)

      Bell, Stuart (Middlesbrough)

      Cummings, John

      Benn, Rt Hon Tony

      Cunningham, Ms Roseanna

      Bennett, Andrew F

      (Perth)

      Benton, Joe

      Dalyell, Tam

      Bermingharn, Gerald

      Darling, Rt Hon Alistair

      Berry, Roger

      Darvill, Keith

      Best, Harold

      Davey, Edward (Kingston)

      Betts, Clive

      Davey, Valerie (Bristol W)

      Blears, Ms Hazel

      Davidson, Ian

      Blizzard, Bob

      Davies, Rt Hon Denzil (Llanelli)

      Blunkett, Rt Hon David

      Davies, Geraint (Croydon C)

      Boateng, Paul

      Davies, Rt Hon Ron (Caerphilly)

      Borrow, David

      Davis, Terry (B'ham Hodge H)

      Bradshaw, Ben

      Dawson, Hilton

      Brake, Tom

      Dean, Mrs Janet

      Brand, Dr Peter

      Denham, John

      Breed, Colin

      Dewar, Rt Hon Donald

      Brinton, Mrs Helen

      Dismore, Andrew

      Brown, Rt Hon Nick (Newcastle E)

      Dobbin, Jim

      Brown, Russell (Dumfries)

      Donohoe, Brian H

      Buck, Ms Karen

      Doran, Frank

      Burden, Richard

      Dowd, Jim

      Burgon, Colin

      Drew, David

      Burnett, John

      Drown, Ms Julia

      Burstow, Paul

      Eagle, Angela (Wallasey)

      Butler, Mrs Christine

      Eagle, Maria (L'pool Garston)

      Byers, Stephen

      Edwards, Huw

      Caborn, Richard

      Efford, Clive

      Campbell, Alan (Tynemouth)

      Ellman, Mrs Louise

      Campbell, Mrs Anne (C'bridge)

      Ennis, Jeff

      Campbell, Menzies (NE Fife)

      Etherington, Bill

      Campbell, Ronnie (Blyth V)

      Ewing, Mrs Margaret

      Campbell-Savours, Dale

      Fearn, Ronnie

      Canavan, Dennis

      Field, Rt Hon Frank

      Casale, Roger

      Fitzpatrick, Jim

      Caton, Martin

      Fitzsimons, Lorna

      Chapman, Ben (Wirral S)

      Flynn, Paul

      Chaytor, David

      Follett, Barbara

      Chidgey, David

      Foster, Rt Hon Derek

      Chisholm, Malcolm

      Foster, Don (Bath)

      Clapham, Michael

      Foster, Michael Jabez (Hastings)

      Clark, Rt Hon Dr David (S Shields)

      Foster, Michael J (Worcester)

      Clark, Dr Lynda

      Galbraith, Sam

      (Edinburgh Pentlands)

      Galloway, George

      Clark, Paul (Gillingham)

      Gapes, Mike

      227

      Gardiner, Barry

      Laxton, Bob

      George, Andrew (St Ives)

      Lepper, David

      George, Bruce (Walsall S)

      Leslie, Christopher

      Gerrard, Neil

      Levitt, Tom

      Gibson, Dr Ian

      Linton, Martin

      Godsiff, Roger

      Livingstone, Ken

      Goggins, Paul

      Livsey, Richard

      Golding, Mrs Llin

      Llwyd, Elfyn

      Gordon, Mrs Eileen

      Lock, David

      Gorrie, Donald

      Love, Andrew

      Griffiths, Jane (Reading E)

      McAllion, John

      Griffiths, Nigel (Edinburgh S)

      McAvoy, Thomas

      Griffiths, Win (Bridgend)

      McCabe, Steve

      Grocott, Bruce

      McCafferty, Ms Chris

      Grogan, John

      McCartney, Ian (Makerfield)

      Gunnell, John

      McDonagh, Siobhain

      Hain, Peter

      Macdonald, Calum

      Hall, Mike (Weaver Vale)

      McFall, John

      Hall, Patrick (Bedford)

      McGuire, Mrs Anne

      Hamilton, Fabian (Leeds NE)

      McIsaac, Shona

      Hanson, David

      McKenna, Mrs Rosemary

      Harman, Rt Hon Ms Harriet

      Mackinlay, Andrew

      Harris, Dr Evan

      McLeish, Henry

      Harvey, Nick

      Maclennan, Rt Hon Robert

      Heal, Mrs Sylvia

      McNamara, Kevin

      Healey, John

      McNulty, Tony

      Heath, David (Somerton & Frome)

      MacShane, Denis

      Henderson, Ivan (Harwich)

      Mactaggart, Fiona

      Hepburn, Stephen

      McWilliam, John

      Heppell, John

      Mahon, Mrs Alice

      Hesford, Stephen

      Mallaber, Judy

      Hill, Keith

      Mandelson, Peter

      Hinchliffe, David

      Marek, Dr John

      Hoey, Kate

      Marsden, Gordon (Blackpool S)

      Home Robertson, John

      Marsden, Paul (Shrewsbury)

      Hoon, Geoffrey

      Marshall, David (Shettleston)

      Hope, Phil

      Marshall, Jim (Leicester S)

      Hopkins, Kelvin

      Marshall-Andrews, Robert

      Howarth, Alan (Newport E)

      Martlew, Eric

      Howarth, George (Knowsley N)

      Meacher, Rt Hon Michael

      Howells, Dr Kim

      Meale, Alan

      Hoyle, Lindsay

      Michael, Alun

      Hughes, Ms Beverley (Stretford)

      Michie, Bill (Shef'ld Heeley)

      Hughes, Kevin (Doncaster N)

      Michie, Mrs Ray (Argyll & Bute)

      Hurst, Alan

      Milburn, Alan

      Hutton, John

      Miller, Andrew

      Iddon, Dr Brian

      Mitchell, Austin

      Ingram, Adam

      Moffatt, Laura

      Jackson, Ms Glenda (Hampstead)

      Moore, Michael

      Jackson, Helen (Hillsborough)

      Moran, Ms Margaret

      Jamieson, David

      Morgan, Alasdair (Galloway)

      Jenkins, Brian

      Morgan, Ms Julie (Cardiff N)

      Johnson, Alan (Hull W & Hessle)

      Morgan, Rhodri (Cardiff W)

      Johnson, Miss Melanie

      Morris, Ms Estelle (B'ham Yardley)

      (Welwyn Hatfield)

      Morris, Rt Hon John (Aberavon)

      Jones, Barry (Alyn & Deeside)

      Mudie, George

      Jones, Helen (Warrington N)

      Murphy, Denis (Wansbeck)

      Jones, Ms Jenny

      Naysmith, Dr Doug

      (Wolverh'ton SW)

      Norris, Dan

      Jones, Jon Owen (Cardiff C)

      Oaten, Mark

      Jones, Dr Lynne (Selly Oak)

      O'Brien, Bill (Normanton)

      Jones, Martyn (Clwyd S)

      O'Hara, Eddie

      Jones, Nigel (Cheltenham)

      Olner, Bill

      Kaufman, Rt Hon Gerald

      Öpik, Lembit

      Keeble, Ms Sally

      Organ, Mrs Diana

      Keen, Alan (Feltham & Heston)

      Osborne, Ms Sandra

      Keen, Ann (Brentford & Isleworth)

      Palmer, Dr Nick

      Kelly, Ms Ruth

      Pearson, Ian

      Kemp, Fraser

      Pendry, Tom

      Kennedy, Jane (Wavertree)

      Pickthall, Colin

      Kilfoyle, Peter

      Pike, Peter L

      King, Ms Oona (Bethnal Green)

      Plaskitt, James

      Kingham, Ms Tess

      Pollard, Kerry

      Kirkwood, Archy

      Pond, Chris

      Kumar, Dr Ashok

      Pound, Stephen

      Ladyman, Dr Stephen

      Powell, Sir Raymond

      228

      Prentice, Ms Bridget (Lewisham E)

      Stuart, Ms Gisela

      Prentice, Gordon (Pendle)

      Sutcliffe, Gerry

      Prescott, Rt Hon John

      Swinney, John

      Primarolo, Dawn

      Taylor, Rt Hon Mrs Ann

      Prosser, Gwyn

      (Dewsbury)

      Purchase, Ken

      Taylor, Ms Dari (Stockton S)

      Quin, Ms Joyce

      Taylor, David (NW Leics)

      Rammell, Bill

      Taylor, Matthew (Truro)

      Rapson, Syd

      Thomas, Gareth (Clwyd W)

      Rendel, David

      Thomas, Gareth R (Harrow W)

      Robertson, Rt Hon George

      Timms, Stephen

      (Hamilton S)

      Tipping, Paddy

      Robinson, Geoffrey (Cov'try NW)

      Todd, Mark

      Rooker, Jeff

      Tonge, Dr Jenny

      Rooney, Terry

      Touhig, Don

      Ross, Ernie (Dundee W)

      Trickett, Jon

      Rowlands, Ted

      Truswell, Paul

      Roy, Frank

      Turner, Dennis (Wolverh'ton SE)

      Ruane, Chris

      Turner, Dr George (NW Norfolk)

      Russell, Bob (Colchester)

      Twigg, Derek (Halton)

      Russell, Ms Christine (Chester)

      Twigg, Stephen (Enfield)

      Ryan, Ms Joan

      Tyler, Paul

      Salmond, Alex

      Vaz, Keith

      Salter, Martin

      Wallace, James

      Sanders, Adrian

      Walley, Ms Joan

      Savidge, Malcolm

      Wareing, Robert N

      Sawford, Phil

      Watts, David

      Sheerman, Barry

      Webb, Steve

      Sheldon, Rt Hon Robert

      Welsh, Andrew

      Short, Rt Hon Clare

      White, Brian

      Simpson, Alan (Nottingham S)

      Whitehead, Dr Alan

      Skinner, Dennis

      Wicks, Malcolm

      Smith, Rt Hon Andrew (Oxford E)

      Williams, Rt Hon Alan

      Smith, Angela (Basildon)

      (Swansea W)

      Smith, Miss Geraldine

      Williams, Alan W (E Carmarthen)

      (Morecambe & Lunesdale)

      Williams, Mrs Betty (Conwy)

      Smith, Jacqui (Redditch)

      Willis, Phil

      Smith, Llew (Blaenau Gwent)

      Winnick, David

      Smith, Sir Robert (W Ab'd'ns)

      Winterton, Ms Rosie (Doncaster C)

      Snape, Peter

      Wise, Audrey

      Soley, Clive

      Wood, Mike

      Southworth, Ms Helen

      Woolas, Phil

      Squire, Ms Rachel

      Wray, James

      Steinberg, Gerry

      Wright, Anthony D (Gt Yarmouth)

      Stevenson, George

      Wyatt, Derek

      Stewart, David (Inverness E)

      Stinchcombe, Paul

      Tellers for the Noes:

      Straw, Rt Hon Jack

      Mr. Graham Allen and Mr. Greg Pope.

      Stringer, Graham

      Question accordingly negatived.
      It being after half-past Eight o'clock, THE CHAIRMAN, pursuant to the Order [9 February] and the Resolution [this day], put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
      Clause 48, as amended, ordered to stand part of the Bill.
      Clauses 49 to 51 ordered to stand part of the Bill.

    Clause 52

      SHARED POWERS
      Amendment made: No. 322, in page 22, line 24, leave out '14' and insert
      `9 and 11 to 13'. —[Mr. McFall.]
      Clause 52, as amended, ordered to stand part of the Bill.
      Clause 53 ordered to stand part of the Bill.

    Clause 54

      POWER TO PREVENT OR REQUIRE ACTION
      8.45 pm
      Mr. Bernard Jenkin: I beg to move amendment No. 281, in page 22, line 40, leave out from `may' to end of line 41 and insert
      `apply to the Court of Session to seek an order to prohibit the proposed action'.
      The Second Deputy Chairman: With this, it will be convenient to discuss the following amendments: No. 282, in page 22, line 44, leave out from 'may' to end of line 45 and insert
      `apply to the Court of Session to seek an order to require such action to be taken'.
      No. 283, in page 23, line 14, leave out
      `by order revoke the legislation'
      and insert
      `apply to the Court of Session for an order revoking the legislation'.
      Mr. Jenkin: I have to confess that I rise with some trepidation, because I was given this neat little collection of amendments to pursue. The more I delved into the Bill and had the Secretary of State jog my elbow and chuckle, the more I realised why a QC would want to delegate the matter to a non-lawyer. I shall try to be brief to give the Secretary of State as much time as possible to address all the issues that arise from clause 54.
      Clause 54, which we term one of the governor-general clauses of the Bill in view of the powers that it possesses, relates to clause 33, which, unfortunately, we did not have time to discuss. I remind the Committee that clause 33(1)(a) deals with the Secretary of State's powers to intervene. If a measure contains provisions which he
      "has reasonable grounds to believe would be incompatible with any international obligations",
      he can delay or make an order suspending the Royal Assent of an Act of the Scottish Parliament.
      Although I do not wish to tie the Committee in knots, the Secretary of State tells me that the provision relates back to clause 28—one of the most complicated clauses of the Bill, which sadly, we did not discuss. In addressing our amendments to clauses 54 and 55, I invite the Secretary of State to relate his comments to the other clauses that we have not discussed, while remaining in order.
      The key question is what is an international obligation, and what is the Secretary of State's determination of an international obligation in respect of his order-making powers under clauses 33 and 54. In the equivalent debate on Wales, we established that international obligations went beyond treaty obligations. We used as an example the Agenda 21 agreement on the environment. The example which I want to pursue in respect of the amendments is that of the Rio carbon emission targets. To what extent do they represent an international obligation on the United Kingdom that is translatable into an international obligation on the Scottish Executive and the Scottish Parliament? What is the nature of the Secretary of State's decision whether to use his order-making powers in circumstances which I shall describe later?
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      The issue turns on whether the Secretary of State is making a political or a judicial judgment. The substance of our amendments to clause 54 and to clause 33 is that the Secretary of State is making more of a judicial pronouncement than a political judgment; therefore, it would be more appropriate for the matter to be decided by a court—whether it is the Judicial Committee of the Privy Council or the Court of Session—than by the Secretary of State.
      Let us accept that the circumstances would be exceptional, but they could also be extremely controversial. If the Secretary of State used an order-making power to strike down an action of the Scottish Executive or to compel the Scottish Executive to take an action that it would not otherwise take, one can imagine that the political atmosphere would become pretty heated. If we want a positive and constructive relationship involving Westminster and Whitehall and Holyroodhouse and St. Andrew's house, it is not difficult to suggest that the heat should be taken out of the issue by the courts rather than have an essentially judicial matter decided by the Secretary of State.
      Mr. Wallace: There is much to commend amendment No. 281, not least the point that the hon. Gentleman has been making. However, if he has read the notes on clauses—as I am sure he has—he will note that one of the features of the international treaty obligations referred to in the Bill, and the reason for the clause, is that they have not been made part of our domestic law. How does he think that those obligations would become justiciably noted?
      Mr. Jenkin: I shall deal with that point.
      The Parliamentary Under-Secretary of State for Scotland (Mr. Sam Galbraith): Do we have all weekend?
      Mr. Jenkin: I wish I had.
      The issue that the Secretary of State decides is not immune to questioning by the courts and may well be subject to judicial review. I shall deal with that point shortly.
      I invite the Committee to examine the possibility, which I had started to describe, of a dispute among the Government, Whitehall and the Scottish Executive over the extent to which Scotland was fulfilling its part of the obligation to reduce carbon emissions. It would fall to the Secretary of State to decide whether Scotland was frustrating the United Kingdom in fulfilling that obligation. Perhaps there had been a concordat between the Scottish Executive and Whitehall on how the emission targets should be divided between Scotland and the rest of the United Kingdom, and perhaps that agreement had broken down. When the point came at which the Secretary of State had to take a view on the issue, he might decide that Scotland had not contributed sufficiently to reducing emissions, and therefore invoke his order-making powers.
      I invite the Secretary of State to tell the Committee whether that order-making power would be subject to judicial review. If so, what would be the substance of the judicial review? It is one thing for the Secretary of State to decide whether he considers an international obligation to have been fulfilled, but, if it comes to a judicial review,

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      surely the court has to decide whether an international obligation existed and whether the Scottish Parliament and Scottish Executive were frustrating the United Kingdom's fulfilment of that obligation.
      Would it not be better if such an issue were decided initially by a court? I do not know whether the issue would ultimately finish in an international court—for it to decide a United Kingdom constitutional dispute—but that seems rather unlikely. Therefore, to answer the question asked by the hon. and learned Member for Orkney and Shetland (Mr. Wallace), I think that, on an issue of international obligation and international law, a domestic court would have to decide whether the Secretary of State was justifiably using that power.
      Our group of amendments would ensure that initially courts address the issues, rather than leaving them as the basis of political dispute. Specifically, in our proposed amendments to clause 33, we suggested that the matter should be referred directly to the disputes procedure, as specified in paragraph 4(1) of schedule 6. In amendment No. 281, we recommend using the Court of Session, but we are not fussy. If the Secretary of State comes up with a better idea, we should very much welcome those proposals. It is clearly odd to invite a United Kingdom domestic court to decide a matter of international law. Although it seems unavoidable that such adjudications will have to be made, they should not be made by the Secretary of State.
      Mr. Dalyell: Clause 54 constitutes a substantial restraint on the competency of certain legislation in the Scottish Parliament. Although the clause empowers the "Secretary of State", that need not be the Secretary of State for Scotland; as the Bill is written, it could be any Minister of the Crown. I wonder whether the Secretary of State will confirm that.
      I must say that it is a travesty of scrutiny in the House of Commons that, as with clause 33, we did not debate clause 53. By the time of the Bill's Third Reading, no one will be able to say that the Bill was properly scrutinised. Unless we very thoroughly scrutinise clauses 33 and 53 at Report, we cannot claim to have had scrutiny.
      Given the existence of clause 53, which allows Westminster Ministers to override the actions or supply the omissions of Scottish Ministers in the European Community and convention spheres, it is not clear why clause 54(2), with its power to require action of a Scottish Minister in the same spheres, is necessary. Surely the same result can be achieved by the UK Minister asserting his independent right. Regardless, what sanctions are available to ensure that relevant action is taken by the Scottish Minister? Clause 54(1) clearly remains necessary, to take account of the possibility that a Scottish Minister committed to so acting could presumably act contrary to international obligations unless the UK Government retained a preventive power. Again, however, and much more pertinently, that raises the question of appropriate enforcement mechanisms. The Bill does not have much to say about those.
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      Clause 54(3) makes no provision for the Secretary of State's action to be directed to a particular person. Is it the First Minister or the member of the Scottish Executive who can be directed to act, and how can such a direction be reviewed? I look forward to hearing the Secretary of State on those matters.
      Mr. William Cash: As the hon. Member for Linlithgow (Mr. Dalyell) has said, the provision in clause 54 ignores the fact that clause 53 has not been properly scrutinised, raising some fundamental questions—not the least of which is the relationship involving legislation that is made in the House, legislation that is made in the Scottish Parliament and the obligations that are imposed by section 2 of the European Communities Act 1972. The bottom line is simply that, in the Bill, an attempt is made to bypass the impact of the European dimension on legislation that will have an impact on the people of Scotland, not to mention on the people of the United Kingdom as a whole.
      Clause 53, which has not been debated but is of direct relevance to the provision, states:
      "(1) Despite the transfer to the Scottish Ministers by virtue of section 49 … any function of a Minister of the Crown in relation to any matter shall continue to be exercisable by him as regards Scotland for the purposes specified in section 2(2) of the European Communities Act 1972."
      It goes on:
      "(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible"—
      The Second Deputy Chairman: Order. I remind the hon. Member that we are discussing clause 54. I should be grateful if he confined his remarks to the amendment before the Committee.
      Mr. Cash: The point that I am making arises with respect to clause 54(4). The question whether
      "the Secretary of State has reasonable grounds to believe"
      that a provision
      "would be incompatible with international obligations"
      or
      "within the legislative competence of the Parliament by virtue of … section 28"
      is directly relevant to superior law, which takes us back to clause 53.
      I shall not go into the merits of clause 53. I shall simply make the important point that the consequences of legislation made in the European Community dimension—because it is superior law—will override any decisions taken, including those on the basis of so-called "reasonable grounds" by the Secretary of State. The bottom line is that, whether or not the Secretary of State comes to a conclusion based on what he may regard as "reasonable grounds", that is not within his jurisdiction, because it will be overridden by the fact that the legislative competence of the Parliament under clause 54(4) will be determined by the ultimate decision of the European Court.
      Mr. Wallace: Given that international obligations are defined in clause 111(7) as meaning
      "obligations … other than obligations under Community law",
      and therefore expressly exclude anything relating to Community law, how can Community law have relevance?
      9 pm
      Mr. Cash: I debated this question with the Minister during earlier proceedings. When he kept on saying that he was concerned with the question of international agreements—by which I mean international obligations—I made the point that he was completely confused about the interaction between what he was describing as international agreements and international obligations as defined in clause 111. That is where the problem lies.
      Clause 111 may be an attempt to define an international obligation, but the plain fact remains that whether such an obligation is an international obligation falling within the purview of the European Communities Act will be decided not by the Secretary of State's reasonable assessment but by the Court of Justice—if and when the question gets there because of a contravention of a provision of European Community law.
      We know perfectly well that, over and again, there have been attempts—as, indeed, there is in this Bill with regard to the Scottish Parliament—to create an impression that, somehow, we will be able to retain control over what is decided in this House. The White Paper demonstrates the nature of the problem by reference to the manner in which decisions will be taken in the Council of Ministers. An attempt is being made, somehow, to create an impression that there will be a continuing jurisdiction in this House or in the Scottish Parliament. The reference to legislative competence under section 28 shows that the Government are concerned about whether there would be legislative competence in the Scottish Parliament. There is a raft of inconsistency of jurisdiction in the schedules which seek to determine the Parliament's legislative competence.
      The Bill is unbelievably obscure and opaque when it comes to where decisions will be taken. I see the Secretary of State shaking his head. Perhaps he would be kind enough to say why he thinks that I am wrong on this point. I raised it with him in an earlier debate, and he admitted that he did not have the means of determining where the line was drawn. A massive confusion will occur, ultimately driven by the provisions of European Community law, which will override and frustrate any attempt, which I am sure the Government are making, in any Act of Parliament—including this Bill or, indeed, the European Communities (Amendment) Bill—to create dividing lines between the various jurisdictions.
      We now have a tripartite jurisdiction. We are no longer talking only about what matters will be determined by ministerial decision. The opportunities that Ministers have to state whether they have reasonable grounds, which is a matter of judicial review, will be determined—as the Amsterdam treaty makes abundantly clear—not in the courts of first instance but in the highest courts in the land.
      The Secretary of State will be in an extremely ambiguous position in his relationships with the United Kingdom Cabinet, Scotland and the Council of Ministers. He will find himself in increasing difficulties over the legislative competence of the Scottish Parliament as
      234
      stipulated in subsection (4). Who will be the ultimate arbiter? Who will make the fundamental decisions? It will not be the Secretary of State.
      The clause is a load of codswallop. It is an attempt to give the impression that the Secretary of State will have the power to revoke legislation where he has reasonable grounds to believe that there has been an infringement of the powers that are laid down—it is an ultra vires issue. He is arrogantly trying to give the impression that he can make decisions that he will not be able to make.
      Irrespective of what the hon. and learned Member for Orkney and Shetland (Mr. Wallace) said—that clause 111 defines international obligations—where there are conflicts with the European Court and European Community obligations, decisions will be taken by the highest courts in the land and, ultimately, by the European Court itself. The Secretary of State is living in cloud cuckoo land if he does not understand that the implications of the clause will be overridden by decisions ultimately taken by the European Court.
      In the past few years, a denial has been increasingly built into the legislative process. There has been a refusal to admit that there will be complications in determining the overriding jurisdiction of the law-making powers of this land in relation to a raft of legislation, including those matters set out in the schedules to the Bill, as the debate on clause 28 demonstrated. There will be no clear dividing line, and ultimate jurisdiction will lie with the European Court of Justice.
      The Secretary of State can remonstrate and shake his head. He can say that he does not think that that will happen, but I guarantee that, within a matter of years, it will become abundantly clear that—despite the Government's protestations—the dividing line of legislative competence will be determined by the European Court in those areas where it has the competence to decide.
      I see that the Secretary of State has been handed a note from his advisers. I should be delighted if he would be good enough to read out what advice he has been given, as it is clear that he cannot make up his own mind on the subject. I have raised this point with him over and over again—
      Mr. McLeish: The hon. Gentleman is out of touch.
      Mr. Cash: The Minister may say that, but over and over again there have been attempts to give the impression that we are in control of our own affairs, on questions of overlapping jurisdiction, ultra vires issues and legislative competence, when in reality those matters have been resolved against us. The Secretary of State may seek to determine those questions of legislative competence in a Bill of this sort, on what he would term reasonable grounds, but there is no basis for the confidence that is expressed by the look on his face at the moment.
      Mr. McAllion: I shall not follow the remarks made by the hon. Member for Stone (Mr. Cash). Indeed, I doubt whether any hon. Members present could do so.
      When the hon. Member for North Essex (Mr. Jenkin) introduced this group of amendments on behalf of the Opposition, he said that the key to understanding them was the definition of "international obligations". One of

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      the keys to understanding the amendments, as well as the clause, is the definition of "any action proposed". Clause 54(3) states:
      "'action' includes making, confirming or approving subordinate legislation and, in subsection (2), includes introducing a Bill in the Parliament."
      That tells us what the definition includes, but it does not tell us what is excluded. When my right hon. Friend the Secretary of State replies, I hope that he will be clear about what is meant by "action". Does it refer only to subordinate legislation—to Bills of some sort—or can it refer to any sort of action taken by the Scottish Executive, or indeed, the Scottish Parliament?
      I shall give an example. Let us pretend that the Scottish Parliament is already in existence and that, in the middle of this international crisis in the Gulf, the First Minister has decided to hold a debate on the crisis and to put forward a resolution for the approval of the Parliament that would condemn any military action in the Gulf either by the United States of America or by the United Kingdom. That is an action that the Prime Minister in this Parliament could well define as being opposed to international obligations undertaken by the United Kingdom Government. Obviously, we are under some sort of obligation to support the Americans in any military action in the Gulf. Could the UK Prime Minister overrule the Scottish Parliament and stop it holding such a debate?
      The Secretary of State for Scotland (Mr. Donald Dewar): The answer to that question is simply no. I fear that my hon. Friend is suffering from the delusion that a speech by him against certain forms of action in the world amounts to an international obligation. That is an optimistic definition of his own efforts.
      Mr. McAllion: My right hon. Friend deliberately misses my point. I was not referring to international obligations arising from any speech that I might make, but simply saying that the British Government are under an international obligation, I would assume, to support America in the Gulf at the moment. If a Scottish Parliament were against giving that support, would that be defined as going against a UK Government international obligation?
      Mr. Dewar: The answer is that there is no such international obligation. The foreign policy of Her Majesty's Government is a matter for the judgment of the Government of the day, but a decision to follow a certain line in international debate does not constitute an international obligation.
      Mr. McAllion: I am greatly relieved to find that we are under no obligation to undertake military action in the Gulf. That will be a great source of satisfaction for many Labour Members.
      Mr. Cash: Perhaps the hon. Gentleman ignores the fact that, under both the Maastricht and the Amsterdam treaties, what is or is not decided as an international obligation is continuously and progressively being taken into European jurisdiction. Therefore, my earlier point—about which he was dismissive—is entirely relevant to this debate. The bottom line is that it is no good the
      236
      Secretary of State saying that he will have the right to make those decisions, because he is already being overtaken by—
      The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin): Order. I have just arrived in the Chair, but I have been listening to the hon. Gentleman, and clause 54 does not concern our obligations in Europe, so perhaps we could leave that question for this evening.
      Mr. McAllion: I am grateful to you for your ruling, Mr. Martin. If the definition of an international obligation is any international obligation of the United Kingdom, will my right hon. Friend the Secretary of State confirm that, if, the United Kingdom Government signed up to the multilateral agreement on investment this April, it would be the sort of obligation that would affect the Scottish Parliament?
      My right hon. Friend will recognise that the multilateral agreement on investment prevents any Government, whether of the UK or of Scotland, from discriminating against multinationals. It is expected that, under that agreement, multinationals will be able to sue local authorities which they believe to be in breach of that obligation not to discriminate. The Canadian Government are trying to ban a dangerous toxin that is used as an additive in petrol but, because the toxin is produced by only one multinational company, they have been taken to court under the north American free trade agreement, which is similar to the multilateral agreement on investment, on the basis that to ban the toxin would be to discriminate against the multinational that produces it.
      When he winds up the debate, will my right hon. Friend confirm that a Scottish Parliament acting through local government legislation to ban toxins on environmental grounds might under the clause be subject to UK Government intervention to prevent such legislation being passed, because it might be in breach of the multilateral agreement on investment? If the answer is yes, is not that a good and strong argument for not signing up to the multilateral agreement on investment until we hold a proper debate in this Chamber?
      9.15 pm
      Mr. Wallace: First, may I say how much I envy your power, Mr. Martin? When I intervened on the hon. Member for Stone (Mr. Cash) and suggested that the clause dealt with international obligations, which are defined expressly as not including anything relating to European Community law, he told me that I was missing the point. I am sure that the Committee was relieved that he did not try to explain how you, too, had missed the point as, from the Chair, you could not possibly have missed the point—in fact, you were bang on.
      Mr. Cash: The hon. and learned Gentleman seems to have great confidence in what is contained in a British Act of Parliament. Does he dispute the fact that, if there is a dispute about whether a matter that is thought to be a matter of international obligations as defined in the Bill

      237
      is in fact to be regarded as a matter of Community obligations, the question will go to the European Court of Justice for a decision? Will he answer that?
      Mr. Wallace: I am convinced that, if the matter is one of Community law, it will fall under clause 53. In addition, the Parliament will be ultra vires under other clauses, including clause 28.
      Mr. Cash: That is not my point.
      The First Deputy Chairman: Order. The hon. Member will have to behave himself.
      Mr. Wallace: The hon. Gentleman asked rhetorically how it was that he might be mistaken. The answer is that, when one is as Euro-obsessed as he is, one can be mistaken about a great many things.
      Earlier today, when my colleagues and I went through the amendments, we thought that amendment No. 281, which was moved by the hon. Member for North Essex (Mr. Jenkin), held some superficial attraction. We thought that something must be wrong, as we might have to support a Conservative amendment which seemed to be constructive. When the hon. Gentleman thought that he had the wrong brief when he rose to move the amendment, we thought that our analysis had been right.
      However, the hon. Gentleman did make a fair and legitimate point when he said that, if many of the matters in question could be put into the hands of the courts, that might reduce any political tension that may arise in future between the Scottish Parliament at Holyrood and the Westminster Parliament. The difficulty is that, if they are not incorporated into domestic law, international treaty obligations are not automatically judicially noted.
      However, if my recall of practising law many years ago is correct, I believe that it was and is possible to set out foreign law in one's pleadings, so specific treaty obligations can be set out in pleadings to any action or application before the Court of Session. I should be interested to hear whether the Secretary of State thinks that the provision might reduce some of the tension that might arise if it was thought that, for political motives, the Secretary of State in Westminster had intervened in the Scottish Parliament.
      Clause 54(2) states:
      "If the Secretary of State has reasonable grounds to believe that any action capable of being taken by a member of the Scottish Executive is required for the purpose of giving effect to any such obligations"—
      that is, international obligations—
      "he may by order direct that the action shall be taken."
      If, for example, the intention is to distribute fairly the reduction of carbon dioxide emissions across the United Kingdom, I am sure that it is not in prospect that all the responsibility will be loaded on to the Scottish Executive, or the balance put on Scotland.
      Clearly, the hon. Member for Dundee, East (Mr. McAllion) and I are on the same wavelength, because the issue connected with international obligations that I wish to raise is the multilateral agreement on investment. I mentioned to the Secretary of State earlier tonight that I thought that the issue was flavour of the month, and he said, "Not in Anniesland." I can tell him
      238
      that it is in Dundee and Orkney. The issues connected with the multilateral agreement on investment are serious and are becoming more current.
      Mr. McAllion: The issues are serious, and one of the best attended meetings that I have been to recently in Dundee was about the multilateral agreement on investment. Feeling is running high among ordinary people in Scotland, and if any hon. Members believe that the people do not know or care about the multilateral agreement on investment, they should think again.
      Mr. Wallace: The hon. Gentleman is right, and we shall find that the issue is increasingly addressed in the contents of our postbags. He gave the example of a local authority taking certain actions, but what would happen if the Scottish Parliament or the Scottish Executive were to take certain actions? For example, if one of those bodies was trying to attract inward investment and imposed certain requirements with regard to local employment or the use of indigenous suppliers, would that fall foul of the multilateral agreement on investment? Could the Secretary of State at Westminster intervene to prevent that? Who would be ultimately liable—the United Kingdom Government or the Scottish Parliament—if a multinational company were to sue for damages for a breach of the multilateral agreement on investment?
      The issue has not been aired sufficiently, and I bear some responsibility for that, because I have become aware of the problem only in the past week or two. The House of Commons should have a broader debate on it, but this debate addresses issues that will be relevant to the workings of the Scottish Parliament and Scottish local government. It may be unfair to ask the Secretary of State to produce an answer tonight, but I hope that he appreciates from the contributions to the debate that the issue will require explanation at some stage, and sooner rather than later.
      Mr. Swayne: I regard it as one of the principal duties of the Committee to remove sources of potential conflict before the Parliament begins to sit. I have read the Bill sequentially without the benefit of a legal education, and my impression of clause 54—and I have pointed out to the Committee before that impressions are very important—was that it gave draconian powers to the Secretary of State. Under clause 54(1), he may
      "direct that the proposed action shall not be taken."
      He is given a similar power in clause 54(2), and under clause 54(4), he may
      "by order revoke the legislation."
      It strikes me as an obvious source of conflict if a Secretary of State, who is effectively appointed by the British Prime Minister under the Crown, may revoke legislation made by a Parliament responsible to the Scottish people. Amendment No. 281 would at least ameliorate that conflict in some respects.
      Mr. Salmond: I have waited 20 years to agree with something said by my old university friend, the hon. Member for New Forest, West (Mr. Swayne), but I am now in that position.
      I have two questions for the Secretary of State for Scotland. First, will any Secretary of State have the power to adopt a quasi-judicial, supervisory role over the

      239
      functions of the Scottish Parliament on any issue related to international obligations? Secondly, what are "reasonable grounds" and who will judge what would be reasonable grounds for an intervention? I await the answers to those questions with great interest. Meanwhile, I hope never again to agree with the hon. Member for New Forest, West.
      Mr. Grieve: I want to pick up an important point, which I hope that the Secretary of State will address.
      It is always said that courts grant mandatory injunctions very sparingly. However, clause 54 makes it possible for a Secretary of State to give a mandatory direction without having any power to back it up, because ultimately, as I understand it—the Secretary of State will correct me if I am wrong—if the Scottish Parliament, annoyed at the fact that there had been a direction that legislation should be introduced, simply said, "We will do nothing about it," the only solution would be for the Westminster Parliament to introduce the legislation and impose it.
      That strikes me as an unsatisfactory state of affairs. In those circumstances, would it not be better if there were a mechanism to enable the courts to determine who was right in a dispute?
      Mr. Owen Paterson: It is vital for the Secretary of State to give us some clarification in answer to the questions that have been asked in the debate, such as: what are reasonable grounds, and how are they decided? Ministers have laughed and sniggered, but those questions are fundamental.
      Ministers must also address the issue raised by my hon. Friend the Member for Stone (Mr. Cash). International obligations are defined in clause 111. That is fine, but what happens if the European Court of Justice does not agree with the definition in the Bill? It is most important that the Secretary of State quickly reads the piece of paper in front of him, which may have come from the dog run over there, which may inform him.
      Time is running out. My final point, which I have made in previous debates in Committee, is that the Bill presumes that a party in power in Westminster has friends in power in the new Scottish Parliament—which may not always be the case. I should like the Secretary of State to consider an example from recent years—the break-up of Czechoslovakia. Clause 54 fills me with foreboding, because it is possible to see conflict ahead and it is ludicrous that the Secretary of State should be the grand panjandrum who decides. Amendment No. 281 should be made, so that disputes are settled in a court of law. The Secretary of State laughed at me when I took the example of the former Czechoslovakia—
      Mr. Dewar indicated dissent.
      Mr. Paterson: The Secretary of State did laugh.
      The Committee should think carefully about what happened in the Czech and Slovak lands, which were bound together in a union and have since fallen apart, catastrophically for the secessionist nation. The secessionist nation is now the one that is struggling. It is the one that was previously subsidised by the richer nation. The nationalist—the secessionist—party in this
      240
      case has a rotten example from the past 10 years, and it should address it. As it stands, clause 54 is a recipe for conflict.
      Sir Robert Smith: I shall be brief. Subsection (2) of clause 54 seems to be the one that is most likely to lead to controversy or conflict. It says:
      "If the Secretary of State has reasonable grounds to believe that any action capable of being taken by a member of the Scottish Executive is required for the purpose of giving effect to any such obligations, he may by order direct that the action shall be taken."
      The Secretary of State may desire to fulfil an international obligation such as the reduction of carbon dioxide emissions, but a range of actions might be available to achieve that object. By what process will the Secretary of State choose an action so as to produce the least damaging reaction from the Scottish Parliament? Conflict may well arise in that regard. That worries me.
      Perhaps, when he replies, the Secretary of State will address that issue, which seems to give the Secretary of State a much wider power to intervene. Stopping an action is a specific and focused act. Forcing an action when there could be a range of options to achieve an international goal is far wider-ranging. I am still quite sympathetic to the concept that, if one goes to the courts first and sorts the matter out, one knows where one stands. If one takes the action and relies on judicial review, the process is dragged out and becomes bogged in a quagmire.
      Mr. Laurence Robertson: It seems curious that my hon. Friends the Members for New Forest, West (Mr. Swayne) and for North Shropshire (Mr. Paterson) always seem to attract derision for constantly hitting the nail on the head. I shall not rehearse the points that they made.
      When the Scottish people were given devolution, I think that they expected to be given democracy. I ask the Secretary of State to address this point: how on earth can the Scottish people have democracy if one person has the right to overturn legislation? How does that sit with the principles of democracy?
      9.30 pm
      Mr. Dewar: I am grateful for this opportunity to respond to the rich array of questions that has been laid before me. I shall begin with the hon. Member for North Shropshire (Mr. Paterson), who asked about the bit of paper that I was passed. It says, "Paterson, North Shropshire". The hon. Gentleman probably has a case for saying that that is a pretty sinister message. I am rather fond of the name "Paterson": it is attached in my mind to an admirable make of oatcake. Oatcakes are quite fresh smelling and crumble at the edges—and I suspect that that description is appropriate in this case.
      I was touched also by the hon. Member for New Forest, North—
      Mr. Swayne: New Forest, West.
      Mr. Dewar: I am very sorry; it is not an area that I know well. The hon. Gentleman read sequentially. Perhaps he should practise a little longer, but I congratulate him on his achievement and I wish him well in that venture. I must also inform him that I do not

      241
      believe in guilt by association; my doubts about him have nothing to do with his friendship with the hon. Member for Banff and Buchan (Mr. Salmond).
      Mr. Dalyell: My right hon. Friend the Secretary of State should be careful in what he says about Paterson shortbread—it is made in my constituency.
      Mr. Dewar: I eat it often, which perhaps accounts for many things.
      I take the debate seriously, but I want to put it in perspective. Hon. Members will recall that we impinged on the question of international obligations for a very short time during the debate on 29 January. Anyone who has the energy will find the relevant passages concerning amendment No. 173 at column 604 of Hansard. That amendment was moved by the hon. Member for Woodspring (Dr. Fox). I always think that, in some mysterious way, Woodspring is an appropriate name for the hon. Gentleman's constituency. He raised some interesting points on that occasion, and fortunately we returned to the issue today.
      The first and very obvious point to make is that clause 54 is an example of the care with which fail-safe mechanisms have been built into the Bill. There is no suggestion that the procedure will be used commonly—in fact, it may never be used at all. However, it was thought right that the mechanism should be in the Bill to guard against a situation in which for some reason—I find it difficult to envisage—the Scottish Executive or the Scottish Parliament should fail to recognise the implications and the importance of an international obligation entered into by the United Kingdom, steadfastly refuse to observe it and act in some way contrary to it. That runs parallel with the point made by the hon. Member for Stone (Mr. Cash)—it may also assist my hon. Friend the Member for Linlithgow (Mr. Dalyell).
      There is also the possibility of a refusal to honour an obligation under European law. That point must be dealt with against that eventuality—although I think it is probably an unlikely one.
      Mr. Cash rose—
      Mr. Dewar: Perhaps the hon. Gentleman will allow me to address that point. He also asked me—it is a great curiosity, and no doubt very flattering to those who write the notes—about a piece of paper that was handed to me. It is not a particularly sophisticated argument and is probably the product of reading the Bill. It says;
      "Clause 54 does not deal with EC obligations, but with international obligations—see clause 111(7). It will therefore be for the ordinary domestic courts to deal with any judicial review, not the European Court of Justice, as was being suggested."
      I draw the hon. Gentleman's attention to the fact that clause 53 provides, by reference to section 2(2) of the European Communities Act 1972, a fail-safe mechanism to deal with a failure to honour European obligations. Clauses 33 and 54 contain similar and parallel machinery to deal with the unlikely consequences of a refusal to honour international obligations, which I mentioned a few moments ago.
      Mr. Jenkin: Is the Secretary of State therefore giving the Committee an assurance that all the obligations that are at present classed as international obligations between members of the European Union will at no stage ever be transmuted into European Community law by some action of a European Court, as has happened in the past?
      Mr. Dewar: I am not going into such arcane matters. We are discussing a sensible series of safeguards against the kind of friction and difficulty that Opposition Members envisage. I think that they exaggerate the danger. I do not think that it will occur, but if we did not make provision in the Bill against those eventualities, we would be open to criticism, such as, "What happens if there is friction? What happens if there is a refusal?" If default will fall heavily on the state in which we shall all be involved—the United Kingdom—and which signed up for those obligations, it is important that we have a way in which to obviate the problem.
      Mr. Rowe: In the admittedly unlikely event of such a disagreement arising, does the right hon. Gentleman envisage that it would be subject to scrutiny by the House of Commons, or would it be an arbitrary act or an executive act of the Secretary of State? If it were subject to scrutiny by the House, would that not lead to a curious situation where Scottish Members might line up with the Scottish Parliament, and other Members might sympathise with them?
      Mr. Dewar: It may be a curious situation, but the answer to the hon. Gentleman's question is that clause 33 contains a provision whereby a Bill may be prevented from going for Royal Assent because of such a dispute. The relevant Secretary of State will lay an order prohibiting the Presiding Officer from making that presentation. Under clause 54(4), where a statutory instrument or some other form of subordinate legislation is being dealt with, an order must be laid revoking that legislation. I understand the hon. Gentleman's point, but it is adequately covered.
      Mr. Cash: The right hon. Gentleman has a slight disadvantage, which is that I think that he is a reasonable man. I have no doubt that he will strive with all his might to arrive at reasonable grounds if the provision leads to the possible revocation of legislation. My problem with it—I invite the Secretary of State to answer the question that so far has not been answered by him—is that clause 111(7) purports to describe international obligations. It states that those are obligations other than those relating to European Community law.
      However, with his great experience, the right hon. Gentleman must know that there are spheres of jurisdiction where Community law overlaps with what purport to be international obligations that might fall within the remit of domestic law. Does he accept that the Bill itself is subject to the question of whether the Court of Justice would arrogate to itself jurisdiction—
      The First Deputy Chairman: Order.
      Mr. Cash: On a point of order, Mr. Martin. I am making a substantive point relating to a question of important constitutional law which arises in the context of—
      The First Deputy Chairman: Order. Let me answer that point. The hon. Gentleman made an intervention and he should know by now that interventions should be brief. He certainly had a good innings in that one.
      Mr. Dewar: The hon. Member for Stone always has a good innings. It is always redeemed by the fact that he grins at his own efforts at the end, in the most pleasant and genuine of ways, and we all forgive him. [HON. MEMBERS: "No."] I can only ask my hon. Friends to search their hearts for charity. A perfect antidote is, when the hon. Gentleman crosses the 18th minute, to leave the Chamber. That cuts the pain quite considerably.
      On a more serious note, I cannot pretend to be an expert on international jurisdiction, but I hold to the simple point that I have made—that we have built into the Bill a series of procedures to reduce any possibility of friction. That is what we are constantly being asked to do. The hon. Member for Stone is only one of a procession of hon. Members saying, "Oh, if there is friction, what a difficulty that will be." This measure meets that point.
      Clearly, if there is a difficulty, we would expect the respective authorities in Edinburgh and London to discuss the issue and to see, at official level, whether agreement could be reached. There might have to be ministerial contact at both ends of the country. From that, one proceeds in the way that we have described—the European way, through section 2(2) of the European Communities Act 1972 or, if it is an international obligation, the route that we are now debating.
      Mr. Salmond rose—
      Mr. Dewar: I hope that the hon. Gentleman will bear with me for a moment.
      I come now to some of the other points that have been made. I am anxious to get across that this is a belt-and-braces and a fail-safe measure, not a general override power which a Secretary of State can use at whim. If he had to lay orders because it involved subsidiary or primary legislation, clearly he would, in the first place, have to convince the House, which, presumably, is not beyond reason, and, if it was arbitrary, the House would tell the Minister in no uncertain terms that that was so.
      However, if the Minister got the measure through the House and at that point it was still thought to be arbitrary, we have built in the reasonableness test exactly to ensure that it would be justiciable so that those who were oppressed, or felt that they had been oppressed, by an arbitrary decision could go to the Court of Session, or some other relevant domestic judicial forum, in order to test and contest that issue.
      I understand the point made by the hon. Member for North Essex (Mr. Jenkin) about the part that the courts could play, but speed is the essence of this. If there is a breach of an international obligation, it must be brought to an end as quickly as possible. If it has not been possible to do so through agreement, and one then has to have recourse to the courts, it is right to do so in order to test the reasonableness of the decision that has been taken.
      I am sure that my hon. Friend the Member for Linlithgow would recognise that the term "Secretary of State" does not just mean the Secretary of State for Scotland. It means the relevant Secretary of State. If the matter concerned was a breach of an international obligation, it is likely that the Foreign Secretary would bring the matter to the House of Commons and, ultimately, deal with the situation that had arisen.
      Mr. Salmond: A few seconds ago, the Secretary of State said that a Secretary of State would first have to get the matter through the House. By what procedure would that be done? Would it be by affirmative resolution? Given that international obligations are often arguable—the Spanish interpretation of their obligations in fisheries policy is often different from that in the United Kingdom—why should the judgment of an individual Secretary of State on what is or is not an international obligation be superior to that of an entire Scottish Parliament?
      Mr. Dewar: We propose to use the negative procedure. We are talking about a breach of an international obligation; that is not some vague concept amounting to no more than a disagreement about policy. We are talking about a specific breach which is causing acute difficulty to the Government of the United Kingdom and where a solution, in these extreme circumstances, has to be found. Our proposals are not unreasonable.
      I wish to refer to the essence of the amendments, and perhaps I could be spared further interventions in the interests of the Committee.
      Several points have been made. We have been asked why we do not assume that the matter will be dealt with under the ultra vires negotiations through the normal dispute procedure over vires that leads to the judicial committee of the Privy Council. The answer to that—put fairly by the hon. and learned Member for Orkney and Shetland (Mr. Wallace) on another occasion, and again today—is that it is difficult for the courts to deal with international obligations that have not been imported into their own domain of domestic law. The courts are not normally in a position to assess the compatibility of actions under domestic law with our international obligations, except to the extent that they have been incorporated into domestic law.
      It may be useful to bear in mind that international obligations include not only those established by international treaties, but obligations under customary international law, binding Security Council resolutions and decisions of international tribunals such as the International Court of Justice. These could all be relevant and could lead to great difficulty if there were an impasse on the matter. It is right to build in the kind of machinery we have been discussing.
      9.45 pm
      I wish to give two brief examples, as it is important to put them on the record. In terms of marine transport, there are obligations under customary international law. If, for example, a Scottish Executive were to impose restrictions on entry to Scottish ports which would be inconsistent with these obligations, there could be a need for action under clause 54. Similarly, the bilateral air services agreement to ensure non-discriminatory treatment at airports is another example where it would be extremely difficult for the domestic courts to act.

      245
      To sum up, ultra vires is a track to the Judicial Committee of the Privy Council, but it is not available to us. There are great difficulties in customary international agreements in using the domestic courts. We have suggested, in the most unlikely circumstances in which this will be necessary, that we move with some speed; that the provision is justiciable within the domestic courts because of the reasonableness test; and that it is a sensible provision which will allow good order and sensible business to be conducted within the United Kingdom, while accommodating the proper position and the legislative competence of the Scottish Parliament. Those of us interoseed in that good order will see that this is a sensible clause which does not require the kind of amendment that the Opposition have urged upon us.
      Mr. Jenkin: I shall be extremely brief, and I am grateful to the Secretary of State. However, we are not satisfied because, quite simply, we are dealing with a potentially draconian power. These matters will be subject to dispute. The Secretary of State may find himself dealing with a substantially nationalist Parliament, as we see from recent opinion polls. Even when he takes action—and it becomes clear that the reasonableness test has been satisfied by a judicial review—if the Scottish Executive persists with an action or refuses to take an action which has been outlawed, what then?
      Mr. Dewar: Legislation.
      Mr. Jenkin: I am grateful for that clarification. But how much better it would be to take the heat out of the matter initially by making sure that the courts dealt with it ab initio, rather than dragging in the courts later—perhaps after mistakes had been made.
      Question put, That the amendment be made:—
      The Committee divided: Ayes 181, Noes 323.

      Division No. 162]

      [9.48 pm

      AYES

      Ainsworth, Peter (E Surrey)

      Chapman, Sir Sydney

      Allan, Richard

      (Chipping Barnet)

      Amess, David

      Chidgey, David

      Ancram, Rt Hon Michael

      Clappison, James

      Arbuthnot, James

      Clark, Rt Hon Alan (Kensington)

      Atkinson, David (Bour'mth E)

      Clark, Dr Michael (Rayleigh)

      Atkinson, Peter (Hexham)

      Clarke, Rt Hon Kenneth

      Baker, Norman

      (Rushcliffe)

      Baldry, Tony

      Collins, Tim

      Beggs, Roy

      Colvin, Michael

      Beith, Rt Hon A J

      Cormack, Sir Patrick

      Bercow, John

      Cotter, Brian

      Beresford, Sir Paul

      Cran, James

      Blunt, Crispin

      Cunningham, Ms Roseanna

      Body, Sir Richard

      (Perth)

      Boswell, Tim

      Curry, Rt Hon David

      Brady, Graham

      Dafis, Cynog

      Brake, Tom

      Davey, Edward (Kingston)

      Brand, Dr Peter

      Davis, Rt Hon David (Haltemprice)

      Brazier, Julian

      Day, Stephen

      Breed, Colin

      Dorrell, Rt Hon Stephen

      Brooke, Rt Hon Peter

      Duncan, Alan

      Browning, Mrs Angela

      Duncan Smith, Iain

      Burnett, John

      Evans, Nigel

      Burns, Simon

      Ewing, Mrs Margaret

      Burstow, Paul

      Fabricant, Michael

      Butterfill, John

      Fallon, Michael

      Campbell, Menzies (NE Fife)

      Fearn, Ronnie

      Cash, William

      Flight, Howard

      246

      Forth, Rt Hon Eric

      Nicholls, Patrick

      Foster, Don (Bath)

      Norman, Archie

      Fowler, Rt Hon Sir Norman

      Oaten, Mark

      Fox, Dr Liam

      Öpik, Lembit

      Fraser, Christopher

      Ottaway, Richard

      Gale, Roger

      Page, Richard

      Garnier, Edward

      Paice, James

      George, Andrew (St Ives)

      Paisley, Rev Ian

      Gibb, Nick

      Paterson, Owen

      Gill, Christopher

      Prior, David

      Gillan, Mrs Cheryl

      Randall, John

      Goodlad, Rt Hon Sir Alastair

      Redwood, Rt Hon John

      Gorman, Mrs Teresa

      Rendel, David

      Gorrie, Donald

      Robathan, Andrew

      Gray, James

      Robertson, Laurence (Tewk'b'ry)

      Green, Damian

      Roe, Mrs Marion (Broxbourne)

      Greenway, John

      Ross, William (E Lond'y)

      Grieve, Dominic

      Rowe, Andrew (Faversham)

      Gummer, Rt Hon John

      Ruffley, David

      Hamilton, Rt Hon Sir Archie

      Russell, Bob (Colchester)

      Hammond, Philip

      St Aubyn, Nick

      Harris, Dr Evan

      Salmond, Alex

      Harvey, Nick

      Sanders, Adrian

      Hawkins, Nick

      Sayeed, Jonathan

      Hayes, John

      Shephard, Rt Hon Mrs Gillian

      Heath, David (Somerton & Frome)

      Simpson, Keith (Mid-Norfolk)

      Horam, John

      Smith, Sir Robert (W Ab'd'ns)

      Howard, Rt Hon Michael

      Soames, Nicholas

      Hughes, Simon (Southwark N)

      Spelman, Mrs Caroline

      Hunter, Andrew

      Spring, Richard

      Jack, Rt Hon Michael

      Stanley, Rt Hon Sir John

      Jenkin, Bernard

      Streeter, Gary

      Johnson Smith,

      Swayne, Desmond

      Rt Hon Sir Geoffrey

      Swinney, John

      Jones, Nigel (Cheltenham)

      Syms, Robert

      Kennedy, Charles (Ross Skye)

      Tapsell, Sir Peter

      Key, Robert

      Taylor, Ian (Esher & Walton)

      Kirkbride, Miss Julie

      Taylor, John M (Solihull)

      Kirkwood,Archy

      Thompson, William

      Laing, Mrs Eleanor

      Tonge, Dr Jenny

      Lait, Mrs Jacqui

      Townend, John

      Lansley, Andrew

      Tredinnick, David

      Trend, Michael

      Leigh, Edward

      Tyler, Paul

      Letwin, Oliver

      Tyrie, Andrew

      Lewis, Dr Julian (New Forest E)

      Viggers, Peter

      Lilley, Rt Hon Peter

      Wallace, James

      Livsey, Richard

      Walter, Robert

      Llwyd, Elfyn

      Wardle, Charles

      Loughton, Tim

      Webb, Steve

      Luff, Peter

      Wells, Bowen

      Lyell, Rt Hon Sir Nicholas

      Welsh, Andrew

      McIntosh, Miss Anne

      Whitney, Sir Raymond

      Mackay, Andrew

      Whittingdale, John

      Maclean, Rt Hon David

      Widdecombe, Rt Hon Miss Ann

      Maclennan, Rt Hon Robert

      Willetts, David

      McLoughlin, Patrick

      Willis, Phil

      Madel, Sir David

      Winterton, Mrs Ann (Congleton)

      Maples, John

      Winterton, Nicholas (Macclesfield)

      Maude, Rt Hon Francis

      Woodward, Shaun

      Mawhinney, Rt Hon Sir Brian

      Yeo, Tim

      May, Mrs Theresa

      Young, Rt Hon Sir George

      Michie, Mrs Ray (Argyll & Bute)

      Moore, Michael

      Tellers for the Ayes:

      Morgan, Alasdair (Galloway)

      Mr. Oliver Heald and Mr. Nigel Waterson.

      Moss, Malcolm

      NOES

      Abbott, Ms Diane

      Atkins, Charlotte

      Ainger, Nick

      Austin, John

      Ainsworth, Robert (Cov'try NE)

      Barnes, Harry

      Allen, Graham

      Barron, Kevin

      Anderson, Donald (Swansea E)

      Battle, John

      Anderson, Janet (Rossendale)

      Bayley, Hugh

      Armstrong, Ms Hilary

      Beckett, Rt Hon Mrs Margaret

      Ashton, Joe

      Begg, Miss Anne

      247

      Bell, Stuart (Middlesbrough)

      Edwards, Huw

      Bennett, Andrew F

      Efford, Clive

      Benton, Joe

      Ellman, Mrs Louise

      Bermingham, Gerald

      Ennis, Jeff

      Berry, Roger

      Etherington, Bill

      Best, Harold

      Field, Rt Hon Frank

      Betts, Clive

      Fisher, Mark

      Blears, Ms Hazel

      Fitzpatrick, Jim

      Blizzard, Bob

      Fitzsimons, Lorna

      Blunkett, Rt Hon David

      Flynn, Paul

      Boateng, Paul

      Follett, Barbara

      Borrow, David

      Foster, Rt Hon Derek

      Bradshaw, Ben

      Foster, Michael Jabez (Hastings)

      Brinton, Mrs Helen

      Foster, Michael J (Worcester)

      Brown, Rt Hon Nick (Newcastle E)

      Galbraith, Sam

      Brown, Russell (Dumfries)

      Galloway, George

      Buck, Ms Karen

      Gapes, Mike

      Burden, Richard

      Gardiner, Barry

      Burgon, Colin

      George, Bruce (Walsall S)

      Butler, Mrs Christine

      Gerard, Neil

      Byers, Stephen

      Gibson, Dr Ian

      Campbell, Alan (Tynemouth)

      Godsiff, Roger

      Campbell, Mrs Anne (C'bridge)

      Goggins, Paul

      Campbell, Ronnie (Blyth V)

      Golding, Mrs Llin

      Campbell-Savours, Dale

      Gordon, Mrs Eileen

      Canavan, Dennis

      Griffiths, Jane (Reading E)

      Casale, Roger

      Griffiths, Nigel (Edinburgh S)

      Caton, Martin

      Griffiths, Win (Bridgend)

      Chapman, Ben (Wirral S)

      Grocott, Bruce

      Chaytor, David

      Grogan, John

      Chisholm, Malcolm

      Gunnell, John

      Clapham, Michael

      Hain, Peter

      Clark, Rt Hon Dr David (S Shields)

      Hall, Mike (Weaver Vale)

      Clark, Dr Lynda(Edinburgh Pentlands)

      Hall, Patrick (Bedford)

      Hamilton, Fabian (Leeds NE)

      Clark, Paul (Gillingham)

      Hanson, David

      Clarke, Eric (Midlothian)

      Harman, Rt Hon Ms Harriet

      Clarke, Rt Hon Tom (Coatbridge)

      Heal, Mrs Sylvia

      Clelland, David

      Healey, John

      Clwyd, Ann

      Henderson, Ivan (Harwich)

      Coaker, Vernon

      Hepburn, Stephen

      Coffey, Ms Ann

      Heppell, John

      Cohen, Harry

      Hesford, Stephen

      Coleman, Iain

      Hill, Keith

      Colman, Tony

      Hinchliffe, David

      Connarty, Michael

      Hoey, Kate

      Cook, Frank (Stockton N)

      Home Robertson, John

      Cooper, Yvette

      Hoon, Geoffrey

      Corbyn, Jeremy

      Hope, Phil

      Corston, Ms Jean

      Hopkins, Kelvin

      Crausby, David

      Howarth, Alan (Newport E)

      Cryer, Mrs Ann (Keighley)

      Howarth, George (Knowsley N)

      Cryer, John (Hornchurch)

      Howells, Dr Kim

      Cummings, John

      Hoyle, Lindsay

      Dalyell, Tam

      Hughes, Ms Beverley (Stretford)

      Darling, Rt Hon Alistair

      Hughes, Kevin (Doncaster N)

      Darvill, Keith

      Hurst, Alan

      Davey, Valerie (Bristol W)

      Hutton, John

      Davidson, Ian

      Iddon, Dr Brian

      Davies, Rt Hon Denzil (Llanelli)

      Illsley, Eric

      Davies, Geraint (Croydon C)

      Ingram, Adam

      Davies, Rt Hon Ron (Caerphilly)

      Jackson, Ms Glenda (Hampstead)

      Davis, Terry (B'ham Hodge H)

      Jackson, Helen (Hillsborough)

      Dawson, Hilton

      Jamieson, David

      Dean, Mrs Janet

      Jenkins, Brian

      Denham, John

      Johnson, Alan (Hull W & Hessle)

      Dewar, Rt Hon Donald

      Johnson, Miss Melanie

      Dismore, Andrew

      (Welwyn Hatfield)

      Dobbin, Jim

      Jones, Barry (Alyn & Deeside)

      Dobson, Rt Hon Frank

      Jones, Helen (Warrington N)

      Donohoe, Brian H

      Jones, Ms Jenny

      Doran, Frank

      (Wolverh'ton SW)

      Drew, David

      Jones, Jon Owen (Cardiff C)

      Drown, Ms Julia

      Jones, Dr Lynne (Selly Oak)

      Eagle, Angela (Wallasey)

      Jones, Martyn (Clwyd S)

      Eagle, Maria (L'pool Garston)

      Kaufman, Rt Hon Gerald

      248

      Keeble, Ms Sally

      Pope, Greg

      Keen, Alan (Feltham & Heston)

      Pound, Stephen

      Keen, Ann (Brentford & Isleworth)

      Powell, Sir Raymond

      Kelly, Ms Ruth

      Prentice, Ms Bridget (Lewisham E)

      Kemp, Fraser

      Prentice, Gordon (Pendle)

      Kilfoyle, Peter

      Prescott, Rt Hon John

      King, Ms Oona (Bethnal Green)

      Primarolo, Dawn

      Kingham, Ms Tess

      Prosser, Gwyn

      Kumar, Dr Ashok

      Purchase, Ken

      Ladyman, Dr Stephen

      Quin, Ms Joyce

      Laxton, Bob

      Rammell, Bill

      Lepper, David

      Rapson, Syd

      Leslie, Christopher

      Robertson, Rt Hon George

      Levitt, Tom

      (Hamilton S)

      Lewis, Ivan (Bury S)

      Robinson, Geoffrey (Cov'try NW)

      Linton, Martin

      Rooker, Jeff

      Livingstone, Ken

      Rooney, Terry

      Lock, David

      Ross, Ernie (Dundee W)

      Love, Andrew

      Rowlands, Ted

      McAllion, John

      Roy, Frank

      McAvoy, Thomas

      Ruane, Chris

      McCabe, Steve

      Russell, Ms Christine (Chester)

      McCafferty, Ms Chris

      Ryan, Ms Joan

      McDonagh, Siobhain

      Salter, Martin

      Macdonald, Calum

      Savidge, Malcolm

      McFall, John

      Sawford, Phil

      McGuire, Mrs Anne

      Sheerman, Barry

      McIsaac, Shona

      Sheldon, Rt Hon Robert

      McKenna, Mrs Rosemary

      Short, Rt Hon Clare

      Mackinlay, Andrew

      Simpson, Alan (Nottingham S)

      McLeish, Henry

      Skinner, Dennis

      McNamara, Kevin

      Smith, Rt Hon Andrew (Oxford E)

      McNulty, Tony

      Smith, Angela (Basildon)

      MacShane, Denis

      Smith, Miss Geraldine

      Mactaggart, Fiona

      (Morecambe & Lunesdale)

      McWilliam, John

      Smith, Jacqui (Redditch)

      Mahon, Mrs Alice

      Smith, Llew (Blaenau Gwent)

      Mallaber, Judy

      Snape, Peter

      Mandelson, Peter

      Soley, Clive

      Marek, Dr John

      Southworth, Ms Helen

      Marsden, Gordon (Blackpool S)

      Squire, Ms Rachel

      Marsden, Paul (Shrewsbury)

      Steinberg, Gerry

      Marshall, David (Shettleston)

      Stevenson, George

      Marshall, Jim (Leicester S)

      Stewart, David (Inverness E)

      Marshall-Andrews, Robert

      Stinchcombe, Paul

      Martlew, Eric

      Straw, Rt Hon Jack

      Meacher, Rt Hon Michael

      Stringer, Graham

      Meale, Alan

      Stuart, Ms Gisela

      Michael, Alun

      Sutcliffe, Gerry

      Michie, Bill (Shef'ld Heeley)

      Taylor, Rt Hon Mrs Ann(Dewsbury)

      Milburn, Alan

      Miller, Andrew

      Taylor, Ms Dari (Stockton S)

      Mitchell, Austin

      Taylor, David (NW Leics)

      Moffatt, Laura

      Thomas, Gareth (Clwyd W)

      Moran, Ms Margaret

      Thomas, Gareth R (Harrow W)

      Morgan, Ms Julie (Cardiff N)

      Timms, Stephen

      Morgan, Rhodri (Cardiff W)

      Tipping, Paddy

      Morris, Ms Estelle (B'ham Yardley)

      Todd, Mark

      Morris, Rt Hon John (Aberavon)

      Touhig, Don

      Mudie, George

      Trickett, Jon

      Murphy, Denis (Wansbeck)

      Truswell, Paul

      Naysmith, Dr Doug

      Turner, Dennis (Wolverh'ton SE)

      Norris, Dan

      Turner, Dr George (NW Norfolk)

      O'Brien, Bill (Normanton)

      Twigg, Derek (Halton)

      O'Hara, Eddie

      Twigg, Stephen (Enfield)

      Olner, Bill

      Vaz, Keith

      Organ, Mrs Diana

      Vis, Dr Rudi

      Osborne, Ms Sandra

      Walley, Ms Joan

      Palmer, Dr Nick

      Wareing, Robert N

      Pearson, Ian

      Watts, David

      Pendry, Tom

      White, Brian

      Pickthall, Colin

      Whitehead, Dr Alan

      Pike, Peter L

      Wicks, Malcolm

      Plaskitt, James

      Williams, Rt Hon Alan

      Pollard, Kerry

      (Swansea W)

      Pond, Chris

      Williams, Alan W (E Carmarthen)

      249

      Williams, Mrs Betty (Conwy)

      Wray, James

      Winnick, David

      Wright, Anthony D (Gt Yarmouth)

      Winterton, Ms Rosie (Doncaster C)

      Wyatt, Derek

      Wise, Audrey

      Wood, Mike

      Tellers for the Noes:

      Woolas, Phil

      Mr. Jim Dowd and Jane Kennedy

      Worthington, Tony

      Question accordingly negatived.
      It being after Ten o'clock, THE CHAIRMAN, pursuant to the Order [9 February] and the Resolution [this day], put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
      Clause 54 ordered to stand part of the Bill.
      Clauses 55 to 58 ordered to stand part of the Bill.

    Clause 59

      POWER TO TRANSFER FUNCTIONS
      Amendments made: No. 323, in page 25, line 2, leave out 'Subordinate legislation may' and insert
      `Her Majesty may by Order in Council'.
      No. 324, in page 25, line 10, leave out 'subordinate legislation' and insert 'an Order'.
      No. 325, in page 25, line 13, leave out 'legislation' and insert 'Order'.
      No. 326, in page 25, line 16, leave out 'Subordinate legislation' and insert 'An Order'.—
      No. 327, in page 25, line 18, leave out 'subordinate legislation' and insert 'an Order'.—[Mr. McFall.]
      Clause 59, as amended, ordered to stand part of the Bill.

    Clause 60

      TRANSFERS OF PROPERTY AND LIABILITIES IN CONNECTION WITH FUNCTIONS
      Amendments made: No. 328, in page 25, line 31, leave out 'subordinate legislation' and insert 'an Order'.
      No. 329, in page 25, line 41, leave out 'subordinate legislation' and insert 'an Order'.—[Mr. McFall.]
      Clause 60, as amended, ordered to stand part of the Bill.
      It being after Ten o'clock, THE CHAIRMAN left the Chair to report progress and ask leave to sit again.
      To report progress and ask leave to sit again.—[Mr. McFall.]
      Committee report progress; to sit again tomorrow.

      DELEGATED LEGISLATION
      Mr. Deputy Speaker (Mr. Michael J. Martin): With permission, I shall put together the motions relating to delegated legislation.
      Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),

      CONSUMER CREDIT
      That the draft Consumer Credit (Increase of Monetary Limits) (Amendment) Order 1998, which was laid before this House on 13th January, be approved.

      EMPLOYMENT AND TRAINING
      That the draft Industrial Training Levy (Construction Board) Order 1998, which was laid before this House on 15th January, be approved.
      That the draft Industrial Training Levy (Engineering Construction Board) Order 1998, which was laid before this House on 15th January, be approved.

      FEES AND CHARGES
      That the draft Department of Transport (Fees) (Amendment) Order 1998, which was laid before this House on 15th January, be approved.—[Mr. McFall.]
      Question agreed to.

      Beef Bones Regulations
      [Relevant document: The memorandum relating to this instrument contained in the Nineteenth Report of Session 1997–98 from the Joint Committee on Statutory Instruments (HC 33-xix).]
      10.4 pm
      Mr. Charles Kennedy: I beg to move,
      That an humble Address be presented to Her Majesty, praying that the Beef Bones Regulations 1997 (S.I., 1997, No. 2959), dated 15th December 1997, a copy of which was laid before this House on 15th December, be annulled.
      People from the outside world looking in at the proceedings of our House and Parliament must feel somewhat bemused. It is only now, well into February and some considerable time after the event, that the House of Commons has got around to debating something that has excited great public and consumer controversy and that has, in effect, legal force, following the decision of Her Majesty's Government. When some of our European colleagues examine the way in which we do things in this House and Parliament—not least on matters agricultural—Ministers will have difficulty in defending and explaining their activities to their European counterparts. A procedure such as this can only add to Ministers' difficulties and to our difficulties as a House.
      The purpose of our prayer is to give the Government in particular and the House in general an opportunity to agree, on Division, that it is never too late to think again about the regulations. [HON. MEMBERS: "Hear, hear."] I welcome that generous response from the Conservative Benches, because I want to introduce a note of cross-party harmony between the Liberal Democrats and our friends in the parliamentary Conservative party.
      When the Minister of Agriculture, Fisheries and Food came to the House before Christmas and made his initial statement, in response outside the House, the leader of the Conservative party wobbled a little, saying that the Conservative party may have had to give the statement a bit of support. However, a much more trenchant response came that afternoon from the right hon. Member for Fylde (Mr. Jack), who replied on behalf of the Conservative party in the House.
      None the less,I and other Liberal Democrats who were present noticed that the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the previous Minister of Agriculture, endorsed the Government's actions. I notice that he is not in his place. I can only wonder whether the parliamentary Conservative party or the Government feel more embarrassed by his endorsement of the Government's proposals. Given his uncharacteristic absence from a debate such as this, I wonder whether the 1922 Committee has him under house arrest.
      Both Liberal Democrat and Conservative Members will vote in favour of the humble address; they support our motion. I welcome the fact that the Liberal Democrats, in that spirit of generosity that characterises our approach, are happy to be able to offer the parliamentary Tory party two things that it has lacked so much during this Parliament: direction and leadership.
      Mr. James Gray: I welcome the opportunity to return to the hon. Gentleman the thanks of
      252
      the parliamentary Conservative party for the support that his noble Friends in the other place gave to the Conservative party when it prayed against the same order there.
      Mr. Kennedy: That is a particularly decent contribution from the Conservative candidate whom I defeated in 1992. The generosity of the Conservative party knows no bounds.
      There is much that the Conservatives are on the back foot about because, before 1 May, they had been in government for a long period, but this is one aspect of agricultural policy where the Government of the day have had sole control, and it is therefore right that we hold the Government of the day to account and clearly state our opposition to their proposal.
      Let me make it clear that the opposition of the Liberal Democrats to the measure—here we part company and I shall leave the right hon. Member for Fylde (Mr. Jack) to make his own case—is both practical and philosophical. It is not what has been characterised in certain newspapers such as the Evening Standard as a personalised attack on the Minister of Agriculture. I note that he has been described as "Dr. Jack Boot" in certain editorial columns—[HON. MEMBERS: "Where is he?"] I assume that he is consoling the former Minister of Agriculture.
      It is not a cheap, opportunistic campaign against the Minister of Agriculture. I acknowledge that he has reflected carefully on the matter. The Liberal Democrats are not arguing that the Government should have pursued a policy of anti-disclosure or secrecy when the scientific and medical evidence was passed on to them during the second half of last year. For a party that has long since argued the case, now taken up by the Government, for a food standards agency, that would be a perverse thing to do.
      Our objections on the practical level, however, arise first from the fact—as the Minister said in his original statement before Christmas—that SEAC, the Spongiform Encephalopathy Advisory Committee, as well as giving him the evidence and the medical advice from the chief medical officer, set out three options, which the Minister outlined in his statement. The Government decided on the toughest, the most radical or the most extreme option. [Interruption.]Labour Back Benchers may say that it was sensible, but the people who are probably best placed to judge the sense of it are those who will have to enforce it. The Chartered Institute of Environmental Health described the measure as "practically unworkable". That is not a good basis on which to proceed.
      Mr. George Stevenson: If the hon. Gentleman finds my right hon. Friend's decision so unreasonable, why did the Liberal Democrats oppose the previous Government when they said that there was no danger of transmission from one animal to another or from animal to human? Yet now that my right hon. Friend has taken the decision, they oppose it.
      Mr. Kennedy: I defer to my hon. Friend the Member for North Cornwall (Mr. Tyler), but I think that our stance on the issue during the last Parliament shows that the hon. Gentleman's remarks are glaringly wide of the mark. The Liberal Democrats never pursued that case, nor are we doing so tonight.

      253
      First, the practicality of the measure is fundamental to judging its worth. Secondly, there is a fundamental philosophical point to be considered. Although individual citizens are right to look to the state and the apparatus of Government for security, advice and support, when it is necessary, when the element of risk is defined as being as minute as it is in this case, we decisively come down on the side of individual liberty. Provided that the necessary information has been placed in the public domain, the individual should be left to make the critical judgment.
      Mrs. Anne Campbell: Is it not the case that new variant Creutzfeldt-Jakob disease has such a long incubation period that it is extremely difficult to determine the risk? In saying that the risk is negligible, is not the hon. Gentleman misleading the House, because we simply do not know, and therefore we had to err on the side of caution?
      Mr. Kennedy: I draw the hon. Lady's attention to the remarks at the National Farmers Union annual conference last week by the Government's principal adviser who chairs SEAC. He pointed to the fact that the incidence of bovine spongiform encephalopathy and the concerns that have been attendant upon it are now, thank goodness, moving decisively in the right direction. Set against that backdrop, the decision seems all the more practically and philosophically perverse.
      The third pointt is the nature of the consultations that were conducted not only inside but outside Parliament. The hon. Member for North Wiltshire (Mr. Gray) mentioned the consultation, in the form of a debate, that occurred in the other place, which resulted in a vote of 207 to 97 against the Government. Most interestingly—I say this as a representative of a party that shares the Government's enthusiasm for getting rid of the hereditary element—even if one breaks down that vote and disregards the votes of hereditary peers voting, the Government would still have lost the vote. That should tell Ministers something about the force of their argument.
      Let us consider the Government's practical consultation process. The statement was made in the House on Wednesday 3 December; the official proposals were faxed over the following weekend, with a response deadline of 4 pm on 12 December; the order was made on 15 December; and the ban was effective from 16 December. Mr. John Fuller, director of the National Federation of Meat and Food Traders—who I should have thought would know a thing or two about the matter—described that as making
      "a mockery of the consultation process bearing in mind SEAC's assessment of the minimal risk."
      Given that the Ministry, on a practical level, has not always covered itself in glory, I was amazed at the speed and the rapidity with which it assessed the replies to the consultation—not least when among the 300 very disparate organisations that it consulted were the Al Hasaniya Moroccan Women's centre and the Association of Circus Proprietors of Great Britain. I do not know whether that was a case of the Ministry wanting to know whether lions in winter prefer their beef on or off the bone, but I think that, when they consulted so widely and—as the BBC "Food and Drink" programme reported in the past 24 hours—only seven of 104 responses supported the Government's ban, Ministers should have started a fresh consultation or thought twice before imposing the ban.
      254
      Perhaps, in passing, I may mention one other matter that is indicative of the debate on beef, of the ban on British exportation and even more so of the importation standards that are being applied to beef entering this country—which many hon. Members feel does not have to meet the stipulations that we place on our own beef producers. The vast majority of imported beef is deboned. Once beef is off the bone, it is very difficult to ascertain whether the specified risk materials—on which, from 1 January, the Government have rightly taken action—have been removed in accordance with UK domestic practice.
      Therefore, there should surely be a total ban on beef imports from member states in which the specified risk materials have not been removed to the standards that we are imposing on our own sector. Additionally, surely further spot checks of consignments of imported beef should be made at their final destination—which is permissible under single market regulations and not contrary to the provisions of the European treaties that we have signed.
      I hope that, in responding to the concerns that have been raised widely in the debate, the Minister will be able to address that issue. Like hon. Members who have spoken to farmers anywhere in the United Kingdom in the past few months, he can be under no illusion that farmers are suffering not only from a sense of injury but from the sense of insult that accompanies that injury because of the lack of a level playing field. As we pursue a policy of removing beef from the bone, we are increasing the likelihood of not being able to check imports to the same standards that we apply to our own beef.
      Another issue—perhaps the Minister will reply to it, too—is that, when the ban was imposed, more than a few farmers had cattle booked into abattoirs and butchers lined up to buy the carcases. They then discovered that those buyers pulled out because of the huge uncertainty that developed almost overnight. If the cattle were just under 30 months old, the farmers may well have had to enter them for the over-30-months scheme. We have all seen the cuts in that scheme under this Administration. Even if the Government resist repealing the ban, it should certainly not apply to cattle under the beef assurance scheme, which has already been established under SEAC regulations, because there is not the slightest possibility of contraction of BSE in such herds.
      What of the risk factor? What judgment did the Minister make? SEAC concluded that there was a minute chance of transfer of the BSE agent via the nervous tissue attached to the spinal base tissue. What was the calculation of odds? After the matter became public, it became common parlance that the calculation of odds was 1,000,000,000:1.
      Dr. George Turner: Will the hon. Gentleman give way?
      Mr. Kennedy: I will, for the last time, but not before pointing out that there is 100 times more chance of being struck by lightning.
      Dr. Turner: As I am a new Member, will the hon. Gentleman remind me what the then Government said

      255
      were the odds on CJD being transmitted to humans? As a member of the public, I remember being told that there was no chance.
      Mr. Kennedy: I am certainly not here to defend the previous Government. The quantifiable difference between this state of affairs and the previous state of affairs is that the scientific evidence has been published and made available to the public. That was not so before.
      The calculation of odds does not back up the case being made by the Government. As a previous Prime Minister famously said, advisers may advise, but Ministers decide. Ministers took this decision and Ministers have to face up to the fact that, within hours of taking it, consumers were voting with their feet, purses and wallets and stocking up for Christmas.
      Mr. Richard Livsey: I had the good fortune this afternoon to meet Professor Frank Raymond, who was a senior MAFF adviser and probably the best British expert on beef. He described the order as a travesty because it was not based on the soundest possible research.
      Mr. Kennedy: I am grateful to my hon. Friend. I confirm that the two of us have met several delegations of farmers from different parts of Wales, the west country, Northern Ireland and Scotland. The same message comes through time and again. There is inevitable professional frustration at the way in which the figures are presented and the conclusions are reached. There is a sense that there is no genuine consultation in the minds of Ministers or the actions of the Ministry.
      Mr. John Townend: Before the hon. Gentleman sits down, will he deal with the inconsistency in Government policy on risk factor? The Government have banned T-bone steaks and oxtail, although, as the hon. Gentleman has said, they carry a risk of 1,000,000,000:1. The decision on smoking, as a result of which hundreds of thousands of people die every year, is left to the individual. We put warnings on the packets, but leave the decision to the individual. What is the difference in this case?
      Mr. Kennedy: As a smoker, I have to be careful. As my hon. Friend the Member for North Cornwall (Mr. Tyler) has pointed out, the risk for the smoker is not so much what we should be concerned about. We should be more concerned about the passive smoker who is sitting next to him. The hon. Gentleman raises a legitimate point; there is inconsistency. I suspect, having read the press statements of the right hon. Member for Fylde, that we shall be hearing more about that.
      Mr. Martyn Jones: Will the hon. Gentleman give way?
      Mr. Kennedy: No, I must make progress. It would not be fair to give way, as many hon. Members want to speak.
      I direct my remarks to Labour Back Benchers, especially the newly elected ones who have participated fully in the chorus, whipped up by the Prime Minister,
      256
      that they are members of the most rural, countryside parliamentary Labour party ever to have been returned under the coat tails of a Labour Government. If that is so, Labour Members should reflect carefully before tonight's vote. This is a litmus test issue, not just for farmers but, in its knock-on effects, for the rural economy as a whole.
      Labour Members should ask themselves who will win if the motion is defeated. Farmers will not; they are experiencing yet another dent in the reputation of one of their principal products in an already weak market. The consumers will not win, either. They are denied a right to decide. Moreover, for the few days when they had that right to decide, they exercised it in complete defiance of the Government's advice.
      There will be no winners in terms of the reputation of Ministers. By a perverse irony, the reputation of the previous Minister of Agriculture suffered because he was perceived as doing too little, too late, and now the reputations of a new set of Ministers are suffering because they are perceived as doing too much, too soon.
      If the motion is defeated, the real loser will be Parliament itself. We should ask ourselves a serious question: if, after dubious and inadequate consultation, Parliament passes unworkable and unenforceable legislation, which does not command public confidence and which encourages otherwise law-abiding people to behave illegally, it is failing in the job that it should be doing. We are talking about a bad law. The Government should take the opportunity offered by this Liberal Democrat motion and—in the words of a Scots song—go home and think again.
      10.26 pm
      The Minister of State, Ministry of Agriculture, Fisheries and Food (Mr. Jeff Rooker): I am pleased to have this opportunity—I understand the points made by the hon. Member for Ross, Skye and Inverness, West (Mr. Kennedy) in his opening remarks—to explain why the regulations were introduced, as, clearly, a number of misconceptions have been voiced in recent weeks and recent minutes. Given the short time available, I shall cover the main points as briefly as possible.
      The Government have been accused of taking a rushed decision in response to a very small risk. We did not. There were indications last summer from the Spongiform Encephalopathy Advisory Committee that actions might need to be taken to remove the risk of a newly discovered BSE infective material entering the human food chain.
      The picture became clearer in succeeding months. In late November, my right hon. Friends the Minister of Agriculture, Fisheries and Food and the Secretary of State for Health, with other Ministers, met to consider the issues with the chairman of SEAC, the deputy chief medical officer and senior officials. At the time, the research results were known, but SEAC's likely recommendations were not. When SEAC's recommendations were known and the chief medical officer's advice had been sought and received, a decision was taken by Ministers, including the Prime Minister.

      257
      There was therefore no ill-considered or hasty reaction to SEAC's report. My right hon. Friend the Minister of Agriculture, was able to make a statement to the House on 3 December that had been fully and carefully thought out.
      Mr. John Burnett: Will the hon. Gentleman give way?
      Mr. Rooker: No, I shall not give way for the moment.
      It may assist the House if I put SEAC's recommendations in the context of the research findings that led to them. New results from continuing research had shown, first, that BSE infectivity had been found in the dorsal root ganglia of bovine animals. Secondly—something that the hon. Member for Ross, Skye and Inverness, West did not mention—there were indications, which are still being evaluated, that BSE infectivity may also be found in the bone marrow of cattle. Dorsal root ganglia are in the channels within back bones. The preliminary findings of possible BSE infectivity in bone marrow apply to all bovine bones. SEAC reported that the risk to human health was very small, a point to which I shall return.
      SEAC's advice came in two parts and not as the hon. Member for Ross, Skye and Inverness, West described it or as has been reported. First, SEAC recommended that the research results should be published and consumers warned of the risk—we did both at once. Secondly, the committee recommended that, if the Government decided that further action was necessary to reduce the small risk further,
      "either: no beef with the bone in from cattle over 6 months old should be sold to the consumer; or cattle slaughtered between 24 and 30 months of age for human consumption should be deboned under official control by the Meat Hygiene Service in licensed plants".
      Frankly, it should have been no surprise to anyone either inside or outside the House or in the scientific community that we decided that further action was necessary. Ever since the introduction of the ban on specified bovine offal in 1989, Governments have always—I repeat, always—excluded from the human food chain any tissue in which BSE infectivity has been identified. The only way to ensure that that was done in the light of the new SEAC findings was to prevent bone-in beef from cattle over six months old from being sold to consumers.
      That was one of the options SEAC had recommended. The other—the deboning of older cattle slaughtered between 24 and 30 months of age—was not a practical proposition owing to lack of cutting plant capacity and because the Meat Hygiene Service does not have sufficient qualified staff for enforcement.
      Mr. Michael Jack: Why did not SEAC recommend those options?
      Mr. Rooker: That was not SEAC's view. We are making the decisions and that is what we are accountable for.
      Mrs. Angela Browning rose—
      Mr. Rooker: I will give way to the hon. Lady in a moment.
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      The Governmenttook very careful account of advice from the chief medical officer, Sir Kenneth Calman. Sir Kenneth made it absolutely clear that he
      "would be very concerned if any tissues that have been shown to transmit BSE were knowingly allowed to remain in the human food chain".
      Therefore, the action taken was fully in line with past practice and the chief medical officer's firm advice on the need for action as the natural history of BSE and new variant CJD is still largely unknown.
      Several hon. Members rose—
      Mr. Rooker: I will give way in a moment.
      Some people claim that there is no example in the past of SEAC giving a view without a recommendation. That is incorrect. In 1994, advice only was given on the use of calf intestines and thymus. However, the then Government operated a policy of extreme caution. In a parliamentary answer, the then Minister of Agriculture, the right hon. Member for South-West Norfolk (Mrs. Shephard) said that SEAC had
      "concluded that the theoretical risk of infection of man from food from infected calves is minuscule. They advised that the continuing results of the experiment should be carefully monitored to confirm this basic conclusion."
      The right hon. Lady continued:
      "I have carefully considered this advice in consultation with my right hon. Friends the other Agriculture Ministers and the Secretary of State for Health. We have concluded while the assessment of SEAC and of the CMG is that any risk to health is minuscule, the Government's policy of extreme caution in relation to BSE requires us to ensure that the tissues in which infectivity might potentially occur are removed from the human and animal food chain."—[Official Report, 30 June 1994; Vol. 245, c. 654. ]
      I greatly regret that the Opposition have now disowned that very clear policy.
      Mrs. Browning: I have listened carefully to the Minister, and I understand his point about advice from SEAC and the chief medical officer and the need for a belt-and-braces policy. However, there is an inconsistency in the decision made by the present Government compared with decisions made by the previous Government in respect of different parts of the carcase. If there is a risk, however minuscule, why is the material not specified bovine material and treated properly, as the rose of the carcase which is considered to be at risk is treated?
      Mr. John Home Robertson: Is that what the hon. Lady is suggesting?
      Mrs. Browning: No, I am not suggesting that. If the Minister is going to put forward an intellectual case for the risk, he must also explain why the material is not SBM.
      Mr. Rooker: I shall come to that point—the hon. Lady has asked a fair question. We are being practical—about the nature of the bits involved. I notice that she did not refer to the potential problem in respect of bone marrow, which is conveniently ignored by most commentators.
      To return to the risk to consumers, SEAC emphasised that the risk is very small; however, it is very real. Creutzfeldt-Jakob disease is a terrible disease. The first

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      signs of new variant CJD are often psychiatric, including anxiety, depression and behavioural change which progresses. After a period of weeks or months, difficulties in walking appear— [Interruption.] This is not a joking matter for victims' families.
      The patient develops uncontrollable jerky movements, progressive stiffness of the limbs and incontinence. As the disease progresses, patients lose awareness of their surroundings, become unable to recognise members of their family and finally pass into a state of complete physical unresponsiveness. There is no treatment and, after one or two years, the patient dies. It is distressing to family and friends to watch someone they care for and love become so seriously ill. No one—I repeat, no one—has yet recovered.
      The idea that we might be able to cook our way out of this—that we might be able to eliminate the risk by cooking—is a non-starter. The agent with which we are dealing is so powerful that surgical instruments used on new variant CJD victims have to be destroyed—they cannot even be sterilised. It would be quite wrong to expose people to the disease unnecessarily. I am well aware that many people believe—I hope that their belief is based on ignorance, rather than on callous disregard—that it would be enough to warn consumers of the risks and leave them to make their own decision. I fundamentally disagree with that.
      One cannot tell which of the bones in a butcher's shop contain tissues that are BSE-infective. If we allowed free sales of bone-in beef, there would be no protection for the many consumers of beef that had been cooked on the bone—people who wanted to continue to eat beef would have no choice. With pre-prepared or manufactured foods, the problem becomes even more difficult, as without a total ban on the use of the bones or of beef cooked on the bone, it would be impossible for consumers to tell whether their food was safe to eat.
      Mr. David Heath: None of us would discount the horrors of CJD, but would the Minister explain one technical point? I find it hard to grasp the distinction being made between the infectivity of the dorsal root ganglia and the infectivity of the neural process which forms part of the same cell but lies outside the spinal column and the autonomic ganglia, which also lie outside the spinal column. Why are they treated differently?
      Mr. Rooker: Because the SEAC advice is specific to the dorsal root ganglia and potentially to bone marrow, to which subject I shall return.
      Mr. David Curry: Will the Minister give way?
      Mr. Rooker: No, I want to continue. This is a very short debate and I am the one who will be criticised for using up time. I have already given way a couple of times, but I shall give way to the right hon. Gentleman before I sit down.
      It is far better in such circumstances for consumers to be able to rely on the fact that all the tissues that are known to carry the risk of infectivity have been removed
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      entirely from the food chain. Not only does that give full public health protection but it serves to boost, rather than undermine, consumers' confidence in beef and beef products. At a time when the beef industry is facing difficulties, that is not something to be dismissed as lightly as I fear that it is dismissed by the Opposition.
      Dr. Jenny Tonge rose—
      Mr. Rooker: I shall give way in a moment—to the right hon. Member for Skipton and Ripon (Mr. Curry).
      I remind the House what I said earlier about potential marrow infectivity. We do not yet have confirmation of that point, in the same way as in the summer we did not have confirmation about dorsal root ganglia. We waited for confirmation before we acted. It would have done more damage to the industry and no service to the consumer if the Government had had to come back to the House a few short months later to deal with what was, essentially, exactly the same problem.
      Opposition Members have claimed outside the House—and will probably repeat tonight—that it is not possible to enforce the regulations. That is far from the case. The media highlight a few individuals but the hype is at variance with what is happening in the rest of the country. The regulations are as enforceable as other public health and consumer protection measures. Guidance has been given to local authorities—which has been welcomed today by the Chartered Institute of Environmental Health—and to the Meat Hygiene Service to help them in that task, and I am confident that they are doing it effectively and to the best of their ability.
      Mr. David Maclean rose—
      Mr. John Swinney rose—
      Mr. Rooker: I repeat that I will give way, but to the right hon. Member for Skipton and Ripon—in a moment. I admit that some breaches of the regulations have been reported, but the vast majority of food manufacturing, distributing and retailing businesses are complying willingly. I challenge any right hon. or hon. Member to deny that fact. Equally, most consumers appear to have accepted the need for the controls at the current time.
      Any businesses that are found to be acting illegally are being advised of their obligations and warned to stop. Thereafter, the matter is not one for the Government but for the judicial process.
      Mr. Curry: Have not the Government themselves redefined risk? I refer the Minister to the White Paper on the Food Standards Agency. The third guiding principle for the agency states:
      "The Agency will make decisions and take action on the basis that … the Agency's decisions and actions should he proportionate to the risk; pay due regard to costs as well as benefits to those affected by them; and avoid over-regulation".
      If that is the case, how is it possible to conceive that the Food Standards Agency would ban beef on the bone?
      Mr. Rooker: I take that point on board. If and when the Food Standards Agency and its officials know what I do not know and what nobody in the House or outside knows—the incubation period of new variant CJD—a

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      proper decision can be taken. Until that is known, we cannot proceed on that basis. Opposition Front Benchers may wish to infect the population, but the Government will not do so. [Interruption.]
      Mr. Deputy Speaker (Sir Alan Haselhurst): Order. This is a serious subject and many people outside want to hear our deliberations. They should be taken calmly and in order.
      Mr. Rooker: The Government have been criticised for going too far in the latest action, but we shall not be deterred by such accusations, nor shall we shrink from what I admit has been a difficult decision. We made it clear on taking office that we would treat consumer protection as our top priority. That was a change of policy from that of the previous Government.
      Mr. Jack: On a point of order, Mr. Deputy Speaker. We have just heard an outrageous slur on the former Government, and I invite you to invite the Minister to withdraw his remarks.
      Mr. Deputy Speaker: I have only heard points of argument, which the right hon. Member may in due course catch my eye and have the opportunity to rebut.
      Mr. Rooker: The Government's decision to give consumer protection top priority was a clear change of policy from that of the previous Administration. That we have done, and we shall continue to do in relation to both British meat and imported meat. I am confident that, as a result of the action that we have taken, British beef is the safest in Europe and probably among the safest in the world, which is why we remain frustrated at the delay in reopening export markets.
      As a result of our action in the House tonight in approving the regulations, Ministers can go to Brussels, look the Ministers of other member states in the eye and say, "Our beef does not contain infectivity." Without the regulations, we cannot say that. The controls are fully justified by the need to protect public health and enhance consumer confidence. In doing so, we are doing the farming industry a real favour. [HON. MEMBERS: "Oh no.''] Oh, yes.
      Mr. Paul Tyler: Will the Minister answer two specific questions? First, in relation to what he has just been saying, how many other member states that have BSE have had to introduce the same regulations? Secondly, if the regulations are so easily enforceable, how many successful prosecutions have there been since 16 December?
      Mr. Rooker: The answer to the second question is, I do not know. It might be early days. I am unaware of any successful prosecution—I am unaware of any prosecutions taking place. One reason for that is probably the fact that very few people are not obeying the regulations. [Laughter.] Regarding the hon. Gentleman's first point, which is a legitimate one, three or four, or perhaps five, member states are considering introducing these regulations and are seeking advice. At present, no country has introduced the regulations that we have, although I know that Italy has in force some similar regulations regarding beef imported from Switzerland.
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      Earlier I referred to advice given in 1994, and I quoted the former Minister of Agriculture, now the shadow Leader of the House. I said that that advice—it was also in the press notice and the answer to the parliamentary question—clearly stated by the then Minister, said, on scientific and medical advice, that there was no evidence of BSE causing CJD in humans.
      That was 1994. We now know that that is not true. We do not know the incubation period of new variant CJD. The fact that there have been—some say "only"—23 cases so far gives no confidence and no guarantee that the number of new variant CJD cases will not increase dramatically. Think about it. We cannot yet predict the scale of the new variant CJD epidemic. We must take steps to reduce the risks that we can identify, and the risk of beef on the bone is a risk that has been identified—small, I accept, but nevertheless real. This is a responsible Government, and we could not have acted in any other way.
      I believe that the regulations—I hate to upset Opposition Members—represent a balanced response to the position that the Government faced when they received SEAC's advice. Of course, we expect the BSE epidemic to come to an end by the year 2001. The practice is in line with the prediction at the present time and, as cases decline, it will naturally be right to review all the protective measures taken by the House, including this one, to which I hope the House will agree tonight.
      10.48 pm
      Mr. Michael Jack: It is always a distressing incident in the House when a Minister loses his cool and emotion overcomes reason. I give the Minister of State the opportunity to intervene on my remarks by saying that, when the Conservatives were responsible for dealing with BSE and all its implications, we took all the scientific advice into account in protecting human health. We took very seriously indeed all the questions connected with Creutzfeldt-Jakob disease. We do not treat the subject lightly. I invite the Minister to withdraw his scurrilous accusations against the previous Government.
      Mr. Rooker: Every measure was too slow, and we have embarked on a damage limitation exercise to restore public confidence.
      Mr. Jack: The record will show that the Minister cast a slur on the Opposition, and I shall demonstrate why we have taken a responsible attitude in this matter.
      Mr. George Stevenson: I am grateful to the right hon. Member for giving way. In that context, will he explain to the House why, between 1986 and 1988, the previous Government did absolutely nothing to protect the consumer interest?
      Mr. Jack: The hon. Gentleman should contain his enthusiasm and read the report of the Southwood committee, in which Professor Southwood praised the previous Government for the totality of their efforts on BSE. We are already seeing the Government's bullyboy tactics, which are designed to distract the House from properly considering the issues under debate this evening.

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      Before I entered the Chamber, I received a message from Mrs. Rolfe of Wantage in Oxfordshire. She said:
      "On behalf of the farmers, butchers and customers I organised a petition at Millbrook Butchers of Grove in Oxfordshire. We collected 282 signatures!"
      She sent a copy of the petition to her local Member of Parliament. She concluded her message by saying:
      "The petition simply states that the ban on beef on the bone is an infringement of free trade of farmers and butchers and an infringement of the customer's right to choose."
      The Conservatives speak on behalf of the beef eaters and the consumers of this country.
      It is regrettable that this evening we have been treated to an emotional outburst by the Minister of State who spoke in place of the Minister of Agriculture, Fisheries and Food. Where is the Minister of Agriculture? He is clearly the one who took the political decision to go further than the advice of SEAC, and he should answer to the House this evening for his actions.
      Mr. Eric Martlew rose—
      Mr. Jack: No, I will not give way. We have heard enough from Labour Members; I want to make some points in this debate.
      The Minister of State gave the impression that sweetness and light surrounded the decision to impose the ban. However, he did not tell the House about the answer that the Minister of Agriculture gave me on 22 December. In the context of SEAC's advice, the right hon. Gentleman said:
      "the advice I have received represented the consensus view of all the members of the Committee who attended the meeting."—[Official Report, 22 December 1997; Vol. 303, c. 486.]
      The word "consensus" is crucial: it means that there was not unanimity.
      The Minister knows that there was disagreement within SEAC about the matter. He also knows that that is why the committee gave further advice to Ministers. The Minister did not put before the House the terms in which that advice was couched. According to paragraph 6 of the SEAC advice, using a series of "pessimistic assumptions" the committee worked out that there was a 95 per cent. chance of no cases of new variant CJD occurring as a result of people eating beef on the bone, and only a 5 per cent. chance of one case arising in the whole of 1998. The committee went on—
      Mrs. Anne Campbell rose—
      Mr. Jack: I want to make this point before the hon. Lady tries to put me off my stroke.
      I remind the Minister of paragraph 7 of the SEAC advice:
      "We recommend that the new research findings from the pathogenesis experiment together with our assessment set out above be made public."
      I make it clear that the Opposition do not disagree with the public's being given that information: an informed
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      choice is a vital contribution to public health. However, the advice continues:
      "If the Government decides that action is necessary to reduce this small risk further"—
      a risk that we have already learnt is 1,000,000,000:1—
      "we recommend"—
      and it goes on to give two other options. Therefore, the Minister of Agriculture clearly took a political decision that went beyond the basic scientific advice provided. It was unnecessary.
      It is interesting that, shortly after the Minister made his statement, MAFF put on the internet advice that effectively said, "You have now heard the new scientific finding. If you have beef in the freezer or in the fridge, you can make up your own mind about what to do with it." That is the way that it should have been.
      Mrs. Anne Campbell: Does the right hon. Gentleman agree that a news release in June 1994 stated:
      "The Government's Chief Medical Officer continues to advise that there is no evidence that humans can contract Creutzfeldt-Jakob Disease from an animal with BSE"?
      He was wrong then. How can he be so sure that he is not wrong now?
      Mr. Jack: The hon. Lady is confusing an argument of yesterday with the advice of this Government. We are here to debate the failings of this Government. I wonder how many Labour Members have told farmers, butchers and meat eaters in their constituency that tonight they will come here and do the business for them. It looks as though all they can do is use derision against our argument.
      There is clearly confusion in the way in which the risk is handled in the Ministry of Agriculture. I asked the Minister whether he could tell me to what extent the calculation of risk to mortality governs his approval of food for human consumption. So far he has been unable to give an answer to that question.
      Mr. Dale Campbell-Savours: Will the right hon. Gentleman give way?
      Mr. Jack: Not to the hon. Gentleman.
      Let us look at the inconsistency in the way in which the Government handle risk. Why are they prepared to sanction a risk of one in 200 of people dying from smoking cigarettes at the rate of 10 a day? With regard to food risk, why are the Government prepared to sanction death at the rate of one in 5 million from poultry meat infected by salmonella and meat infected by E. coli, yet, when it comes to a risk of 1,000,000,000:1, this Minister decides to act? He has told us about the risk of people dying, yet he turns away from greater risks of people dying.
      It is a great pity that the Minister of Agriculture is not present. He has been a stalwart defender of the British Nuclear Fuels plant at Sellafield in his constituency. In my judgment the nuclear industry is safe, but the Library of the House of Commons confirmed to me that the additional risk of getting fatal cancer near Sellafield can be estimated in any year as one in 200,000. The Minister of Agriculture personally subscribes to a safe nuclear industry with a risk of one in 200,000, yet when it comes to negligible risk, he wants to decide for everyone else what risk is taken.

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      Once the risk is made public, people can make up their minds whether to live near Sellafield, and whether to eat beef. When the information on risk was made available, the Ministry put out on its internet site the following words:
      "SEAC concluded that the risk is very small and did not say that the Government needed to act at all other than to make the results public. On this basis the action proposed by the Government is precautionary in the extreme"—
      those are the Minister's own words—
      "and there is no need to clear existing stocks. The Government has spelled out the risks to consumers so they can make up their own minds about stocks in the kitchen or in the freezer."
      Why could the Government not have left it at that?
      As to the chief medical officer, he has said that the risk to human health is "small, even negligible". Let us see what others say. The Scottish office of the British Medical Association says:
      "There are many more risky behaviours about which the public remains uninformed and it would be sensible to let the public choose whether they are prepared to take what appears a minuscule risk."
      Northern Foods—after all, Mr. Chris Haskins is dealing with better government—says:
      "Finally, we would comment on the draconian proposals for what is agreed to be an extremely low risk. Surely it would have been sufficient to make the findings public and let consumers make their own choice."
      Mr. Peter Luff: My right hon. Friend rightly asks where the Minister of Agriculture, Fisheries and Food is. He is in the Smoking Room. Should he not be here?
      Several hon. Members rose—
      Mr. Deputy Speaker: Order. The right hon. Member for Fylde (Mr. Jack) will decide whether to take interventions. We cannot have many hon. Members on their feet at the same time. There is a limited amount of time for the debate.
      Mr. Jack: The Minister clearly knows where he wants to take his risks.
      In reaction to the advice, Sainsburys, that reputable organisation in the sale of food, said:
      "On this basis, we believe that where the risks in food available for human consumption are so low, that they cannot be statistically established, our task as a responsible food retailer is to highlight the implied risk to our customers and let them choose whether or not to buy the product."
      If such organisations say that the Minister should have left it to advice, what right has he to order consumers in this nannyish way to do what he bids?
      On the media today, the Minister has been fond of praying the National Farmers Union in aid of his cause. In a letter of 12 December, the NFU said:
      "Ordinary common sense would suggest that consumers should be provided with the facts and be allowed to make their own purchasing decisions."
      On oxtail, the Meat and Livestock Commission says that the science is not proven and that that should be taken from the ban.
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      If all that inconsistency in government is not enough, the Minister for Public Health, in introducing the Green Paper last week, tellingly said:
      "People don't want to be bossed around or be told what they should eat".
      It is a pity that the Department of Health had not told the Minister of Agriculture what the new line was.
      The whole of this advice is based on a scientific experiment which some have challenged. I shall be interested to hear what the Minister of State says in reply to the remarks of the noble Countess of Mar and the noble Lord Willoughby de Broke in the other place when they debated the matter.
      The Government have tried to convince us this evening that they acted with speed. Why was it only today that they published the advice to local authorities on implementation? It took them a long time to get the rules right for this so-called well-thought-out policy. It is a shambolic performance.
      The Minister of State serves a Birmingham constituency. Today I telephoned Birmingham's chief food safety officer and I listened carefully to what he said. He pointed out that, in terms of enforcement, his department works on a risk-based system. The risks of new variant CJD from eating beef on the bone are so low down on the risk scale that enforcement, will not happen unless people complain. The very people who want to buy beef on the bone are hardly likely to complain.
      How many representations has the Minister had from his own Labour Back Benchers on the matter? I am sure that he has had lots of letters, and it is about time that we knew about that.
      Let us consider enforcement. Paragraph 4 of the information that the Minister kindly sent me states:
      "There is no requirement for increased food authority activity although there will be some additional demand for guidance".
      Even the Minister is saying, "Carry on as normal, lads. Don't go out and do anything you wouldn't do otherwise." When we inquire what that is, we hear that it is the odd visit every six, 12 or 18 months to find out what is going on in the butcher's shop or the restaurant.
      We then come to the clincher on enforcement. Paragraph 12 states:
      "Bone-in beef displayed for sale at retail food premises, for example a butcher's shop, is an indication to an enforcement officer that beef may be being sold there in contravention of the prohibition"
      of the regulation. It goes on to say that, if someone puts up a notice saying, "I will not sell it on the bone," that is all right. It is a complete farce, and the Minister of State knows it. The enforcement measures are nothing more than a sham, and they undermine all the so-called "serious discussion" that the Minister prayed in aid of the measure.
      The Government are inconsistent in the way in which they handle risk, and they are taking a nannyish approach to the matter. The Opposition stand for informed consumer choice, and I invite right hon. and hon. Members to join us in the Lobby tonight.
      Mr. Charles Kennedy: On a point of order, Mr. Deputy Speaker. I am sorry to interrupt the flow of debate, but I seek your guidance. Given the good turnout from both Opposition parties—and the fact that the shadow Cabinet spokesman is present—the absence of

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      the Minister of Agriculture must be for a good reason, departmental or otherwise. In normal circumstances, the Minister of State would make an obligatory reference at the beginning of his speech to the right hon. Gentleman's absence.
      I was not going to intervene until two things prompted me to do so. One was the statement by the Chairman of the Select Committee on Agriculture, the hon. Member for Mid-Worcestershire (Mr. Luff), that the Minister of Agriculture had been spotted in the Smoking Room. The second was that his absence from the Chamber is all the more remarkable since I am certain that, a few minutes ago, there was a rare sighting of that most exotic bird, the Minister without Portfolio.
      Mr. Deputy Speaker: The hon. Gentleman must know that it is not a matter for the Chair who responds from the Treasury Bench.
      Sir Patrick Cormack: Further to that point of order, Mr. Deputy Speaker. I fully accept that it is not a matter for the Chair who is in the Chamber and who is not, but Madam Speaker has on several occasions expressed her concern at the cavalier attitude that has been displayed towards the House by Ministers of the Crown. Is it not the ultimate cavalier attitude for the Minister of Agriculture to be sitting in the Smoking Room while this issue—which is of enormous concern to the farmers of this country—is debated on the Floor of the House?
      Mr. Deputy Speaker: The hon. Gentleman knows that that is not a matter for the Chair. The Minister of State is answering for the Government on this matter.
      11.2 pm
      Mr. Eric Martlew: I shall try to lower the temperature—and I shall probably bore people. I shall support the Government tonight and oppose the Liberal Democrats' prayer. I have re-read the speech made by the right hon. Member for Fylde (Mr. Jack) on 3 December, and one would think that he supported the Government on that occasion. I read the speech three times and it suggested that he supported the Government—perhaps he could tell us otherwise. He then went on to carp, as he has just done. There has been a change in the attitude of the official Opposition.
      We have to be ultra-cautious, because this House does not have a good record on BSE and CJD. We have what I would call a criminally complacent Opposition who were criminally complacent in government. I am sure that the public inquiry will find that.
      Mr. Crispin Blunt: Will the hon. Gentleman give way?
      Mr. Martlew: No, I am not going to give way. I wish to be brief and allow other hon. Members to speak.
      Mr. Gray: On a point of order, Mr. Deputy Speaker. Is it parliamentary language for the hon. Gentleman to describe the activities of the Opposition as "criminal"?
      Mr. Deputy Speaker: I have heard nothing out of order. It is a matter of argument, and it is not an unparliamentary word to use.
      Mr. Martlew: If the hon. Member for North Wiltshire (Mr. Gray) is so thin-skinned, he should not have come into Parliament.
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      I have probably taken part in every BSE debate since the 1980s, and this House has done badly on the issue. I was a member of the Select Committee on Agriculture—I see the hon. Member for Congleton (Mrs. Winterton), another former member of the Committee, in her place—which looked into BSE. We saw all the experts, scientists, farmers and butchers, and we concluded that British beef was safe. That was a wrong decision, and I apologise to the House for getting it wrong. Politicians rarely apologise, but that is what happened. If we are not careful, wrong decisions could be made again.
      Mr. Lembit Öpik: First, is the hon. Gentleman saying that the Government's view is that British beef is not safe? Secondly, at what odds should the public's lawful activities be banned? Given that it is far more dangerous to drive a car to come to Westminster to observe the proceedings of the House, would the hon. Gentleman support the abolition of the motor car for the same reasons he supports the abolition of beef on the bone?
      Mr. Martlew: That intervention does not warrant a reply. I think that British beef is safe now. It was not safe when we had the Select Committee, and we reached the wrong conclusion, although we made some good recommendations. Had our recommendation for tracing been implemented by the previous Government, our beef would not have been banned in Europe.
      In a statement on 20 March 1996, the then Secretary of State for Health said that there was a strong possibility of a link between new variant CJD and BSE. That statement replaced everything that we had been told before. It was tragic because we have lost people. An 18-year-old girl in my constituency had her life before her—she was bright, intelligent and full of life—but she died from the new variant CJD. That may be why I take this matter more seriously than other hon. Members.
      Dr. Liam Fox: Will the hon. Gentleman give way?
      Mr. Martlew: I am sorry; I shall not give way again.
      There are other reasons why I take the matter seriously. I am a Cumbrian Member of Parliament and I worked in the dairy industry for 20 years. We received a delegation of Cumbrian farmers and we had disagreement after disagreement, but one matter on which many of them agreed with me was that the Government were right to ban beef on the bone.
      Dr. Fox: Will the hon. Gentleman give way?
      Mr. Martlew: I shall not give way on that point.
      Those Cumbrian farmers do not want their products going into butchers' shops with a Government health warning stamped all over them like a packet of cigarettes. That would be nonsense. They also realise that beef on the bone represents 3 or 5 per cent. of the market and that they need to get the European ban lifted. That ban will not be lifted if we sell potentially dangerous beef.
      Mr. Paul Keetch: Will the hon. Gentleman give way?
      Mr. Martlew: No, I shall not give way.

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      If we are to put the beef trade back on its feet, the best that we can do is continue the ban of beef on the bone and get the European ban lifted.
      Mrs. Ann Winterton: There is one point that the hon. Gentleman has not dealt with, which he must answer now. If he believes in the ban of beef on the bone, why have not the Government treated the bones in the same way as specified bovine material? If there is contamination, that is the only way in which they could proceed.
      Mr. Martlew: I gave way to the hon. Lady because she was on the Select Committee with me and I was hoping that she would take the opportunity to apologise to the House for the fact that she, too, got it wrong on that occasion.
      The ban is temporary; once we have eradicated BSE from the British herd, it will be lifted. In June 1996, the Ministry of Agriculture, Fisheries and Food released a press release, which said that the UK had had three objectives under its policy to control BSE, including:
      "to protect consumers of bovine products in the UK and elsewhere against any risk, however remote".
      That was when the Conservatives were in government. If they were in government today, they would ban beef on the bone. The Labour Opposition would have been sensible and would have supported the Conservative Government. Conservative Members are now playing politics with this issue. I am fed up with cheapjack jokes about this serious matter.
      11.14 pm
      Mrs. Angela Browning: I had intended to deal with the weakness of the Government's regulations in terms of their enforceability. However, I am so concerned about some of the Minister's points about safety that I would rather address the issue of human health and the food chain.
      The Minister put a compelling argument based on the advice that the Government have been given by the Spongiform Encephalopathy Advisory Committee about bone and the potential infectivity of bone marrow. I understand only too well that when such advice is given, the Government must act.
      In the past 10 years, as further research has been made known, primarily through SEAC, different parts of the carcase and different organs have been deemed to be infective or potentially infective. Advice was given to the previous Government on thymus and tonsils. Not long ago, research showed that the retina in the eye was potentially infective. Orders were made that required the removal of that part of the carcase, and its disposal in such a way as to prevent infectivity from entering the food chain and from being a source of contamination.
      The Minister said that the action that the Government have taken on bovine bone allows them to go to Brussels and say that British beef does not contain infectivity. I accept that statement. If he believes that this is a human health issue, and if he can make that statement with confidence in Brussels or anywhere else because of the requirement to remove bovine bones from the carcase so that they do not enter the food chain, it must surely follow that the Government should introduce measures to dispose of those bones in the same way as every other part of the carcase with potential infectivity is dealt with.
      270
      I cannot think of another organ or another part of the carcase that is deemed to be BSE-infective that is not disposed of in that way. I invite the Minister to name any part of the carcase that is potentially infective according to official advice, but which is not disposed of in the strict and rigorous way that he is familiar with and which I have outlined.
      Mr. John Bercow: He remains seated.
      Mrs. Browning: Indeed, he remains seated.
      The fact of the matter is that the Government made a political decision. The Minister invoked the name of the Prime Minister when referring to that decision. If it was a political decision, the argument about a potential risk to the food chain is not legitimate. It must be one or the other. He has not convinced the House of the genuine basis of his concern about infectivity to humans. If his concern was genuine, he would have classified bones as specified bovine material.
      Mr. David Drew: In the immediate aftermath of the introduction of the ban on beef on the bone, the Meat and Livestock Commission carried out a full investigation through consumer research. It found that 40 per cent. of people who eat beef will continue to do so, come what may. However, a further 40 per cent. were uncertain, and would be worried by any rumours that might be spread. If that were a problem, consumer demand would have fallen considerably, whereas demand for beef in the past couple of weeks has been at its highest since February 1995. Is that consistent with the argument about problems caused by a ban on beef on the bone?
      Mrs. Browning: The hon. Gentleman's colleague, the Minister of State, said that by taking this measure he could confirm that beef did not contain infectivity. If I accept that as a genuine statement in the interests of human health—and the Minister has invoked the advice that he has been given; not just the SEAC advice, but advice from the chief medical officer—I must accept that he genuinely believes that there is a risk. If he believes that, he should follow it through. I invite the Minister again to name any part of the carcase that has been deemed to be potentially infective in regard to BSE that is not properly disposed of. Otherwise, his argument on the grounds of human health and safety does not stand up.
      Let me make a final point to the Minister. If human health is indeed at risk, I must invite him tonight to answer a named-day question that I put to him on 5 February:
      "To ask the Minister of Agriculture, Fisheries and Food, if the requirement to remove bone from beef applies to animals killed on the farm for the farmers' own consumption."
      Clearly, if there is a risk—as the Minister has said tonight—it would be indefensible for him to allow farmers to consume their own beef on the bone.
      The Minister replied to me:
      "I will reply to the hon. Member as soon as possible."
      In other words, on 5 February he was not sure whether there was a risk to farmers or to any other human being. I invite him to say now whether he believes that farmers who consume beef on the bone from home-killed animals are at risk.
      11.21 pm
      Mr. Alan W. Williams: Like my hon. Friend the Member for Carlisle (Mr. Martlew), I have been present at many—indeed, virtually all—the debates on BSE in the House over the past 10 years. The Opposition—the Government of the day—would have done better to listen more to the contributions of Members such as my hon. Friend the Member for Carlisle, my right hon. Friend the Member for Caerphilly (Mr. Davies)—who was here tonight—my hon. Friend the Member for Clwyd, West (Mr. Thomas), and, in particular, my right hon. Friend the Member for South Shields (Dr. Clark), who was a shadow Agriculture Minister for many years.

      At many stages during the late 1980s and early 1990s, we warned the Government that they could never rule out the possible connection between BSE and CJD. We warned them relentlessly that that was always a possibility, but they dismissed it completely, and accused us of scaremongering. The Government's track record at the time was too little, too late. If the accusation is that we have erred too far on the side of safety, that is wonderful.
      Dr. Fox: Will the hon. Gentleman give way?
      Mr. Williams: No. Time is very short, and I have many important things to say.
      I wanted to intervene on the Minister. I tried nine or 10 times, but he would not give way. I am glad that I have now been called. [Interruption.] I mean the shadow Minister, the right hon. Member for Fylde (Mr. Jack). He got into quite a huff over an allegation that my hon. Friend the Minister had made about the previous Government. I wish—I am happy to give way to the shadow Minister on this point—that the previous Government would have the decency to apologise to the families of the 23 victims of CJD whose deaths were caused by lack of action and by assurances that, at the end of the day, did not mean very much. We hope that there will not be many more victims, but the fact remains that the Conservatives have created an awful crisis in my constituency and throughout rural Britain.
      Like most other hon. Members, I was taken aback when I watched the lunchtime news that day and heard the headline story that, in future, bones would have to be taken out of beef because of infectivity in both the dorsal root ganglia and bone marrow. I noticed on that lunchtime bulletin that, immediately after the Minister's interview, the president of the National Farmers Union, Sir David Naish, gave his support for the decision. In addition, the Meat and Livestock Commission gave its immediate support, and very important, Ruth Evans, director of the National Consumer Council, in a letter to The Guardian on 6 December, said:
      "This Government is to be applauded for avoiding prevarication"
      on the issue.
      Several hon. Members rose—
      Mr. Williams: I will not give way.
      I listened intently to the arguments of the shadow Minister, the right hon. Member for Fylde, in attacking the regulations. He based his arguments completely on the fact that the risk is infinitesimal; it is one in a billion. SEAC did
      272
      say that, but it is speculation. We have no real idea what the true risk is. As my hon. Friend the Member for Cambridge (Mrs. Campbell) pointed out in an intervention, there is a long incubation period: it could be three, five, 10 or even 30 years. There may be just 20 or 30 CJD victims or there may be thousands; we do not know. In that case, that one-in-a-billion risk becomes a risk of about one in 10 million.
      Several hon. Members rose—
      Mr. Williams: I give way to the right hon. Member for Fylde.
      Mr. Jack: Have I understood the hon. Gentleman correctly? Is he saying that all the SEAC advice is speculative? That is the import of what he has just said. He is undermining the whole basis of the Minister's argument.
      Mr. Williams: I was saying that, when SEAC speculates that the chance is one in a billion, that is based simply on the fact that, to date, the number of new variant CJD victims is 23. The figure is based on that order of magnitude of incidence. If the incidence is 10, 100 or even 1,000 times as much as that, which we cannot rule out at this stage, that one in a billion figure becomes 10, 100 or 1,000 times less.
      Mr. Keetch rose—
      Mr. Williams: As the hon. Gentleman has tried to intervene several times, I give way to him.
      Mr. Keetch: Will the hon. Gentleman give me some advice to pass on to the beef farmers of Herefordshire? Are they more likely to die from eating beef off the bone in Herefordshire than from drinking and smoking in the tea and smoking rooms of the House of Commons?
      Mr. Williams: Our beef is probably the safest in Europe, and it will be safer still if the regulations are passed.
      Mr. Paul Marsden: Does my hon. Friend agree that it is indefensible to say that we should allow the 5 per cent. risk, whereby there could be one more case of new variant CJD? Clearly, it is not sustainable to say that there should be another death on top of the other 23.
      Mr. Williams: The problem with the previous Government was that, throughout the 10 years that they handled the crisis, they never adopted the precautionary principle. The most serious allegation that the Liberal Democrats, the House of Lords and the Conservative party can make against us is that we err too much on the side of safety, but it is about time that Governments throughout the world erred on the side of safety.
      Several hon. Members rose—
      Mr. Williams: Time is running out, so I shall not give way again.
      I am surprised that in this evening's well-attended debate, we have spent one and a half hours debating beef on the bone, when there are more serious issues affecting the rural economy. Because of the BSE crisis and the value of

      273
      the green pound, and thanks to the previous Government and the problems that they caused, the rural economy is in a desperate plight. Our time would have been far better spent—
      Mr. Tyler rose in his place and claimed to move, That the Question be now put.
      Mr. Deputy Speaker: I do not accept that motion.
      Mr. Williams: Our time would have been far better spent considering the European beef ban. The lifting of the ban would be the answer to our problem. We should also have been discussing the painfully slow progress on the certified herds scheme.
      It being half-past Eleven o'clock, MR. DEPUTY SPEAKER put the Question, pursuant to Standing Order No. 17 (Delegated legislation (negative procedure)).
      The House divided: Ayes 196, Noes 312.

      Division No. 163]

      [11.30 pm

      AYES

      Ainsworth, Peter (E Surrey)

      Dafis, Cynog

      Allan, Richard

      Davey, Edward (Kingston)

      Arness, David

      Davis, Rt Hon David (Haltemprice)

      Ancram, Rt Hon Michael

      Day, Stephen

      Arbuthnot, James

      Dorrell, Rt Hon Stephen

      Atkinson, David (Bour'mth E)

      Duncan, Alan

      Atkinson, Peter (Hexham)

      Duncan Smith, Iain

      Baker, Norman

      Emery, Rt Hon Sir Peter

      Baldry, Tony

      Evans, Nigel

      Ballard, Mrs Jackie

      Ewing, Mrs Margaret

      Beggs, Roy

      Faber, David

      Beith, Rt Hon A J

      Fabricant, Michael

      Bercow, John

      Fallon, Michael

      Beresford, Sir Paul

      Fearn, Ronnie

      Blunt, Crispin

      Flight, Howard

      Boswell, Tim

      Forth, Rt Hon Eric

      Bottomley, Peter (Worthing W)

      Foster, Don (Bath)

      Bottomley, Rt Hon Mrs Virginia

      Fowler, Rt Hon Sir Norman

      Brady, Graham

      Fox, Dr Liam

      Brake, Tom

      Fraser, Christopher

      Brand, Dr Peter

      Gale, Roger

      Brazier, Julian

      Garnier, Edward

      Breed, Colin

      George, Andrew (St Ives)

      Brooke, Rt Hon Peter

      Gibb, Nick

      Browning, Mrs Angela

      Gill, Christopher

      Bruce, Ian (S Dorset)

      Gillan, Mrs Cheryl

      Burnett, John

      Goodlad, Rt Hon Sir Alastair

      Burns, Simon

      Gorman, Mrs Teresa

      Burstow, Paul

      Gray, James

      Butterfill, John

      Green, Damian

      Cable, Dr Vincent

      Greenway, John

      Campbell, Menzies (NE Fife)

      Grieve, Dominic

      Cash, William

      Gummer, Rt Hon John

      Chapman, Sir Sydney

      Hague, Rt Hon William

      (Chipping Barnet)

      Hamilton, Rt Hon Sir Archie

      Chidgey, David

      Hammond, Philip

      Chope, Christopher

      Harris, Dr Evan

      Clappison, James

      Harvey, Nick

      Clark, Rt Hon Alan (Kensington)

      Hawkins, Nick

      Clarke, Rt Hon Kenneth

      Hayes, John

      (Rushcliffe)

      Heald, Oliver

      Collins, Tim

      Heath, David (Somerton & Frome)

      Colvin, Michael

      Heathcoat-Amory, Rt Hon David

      Cormack, Sir Patrick

      Horam, John

      Cotter, Brian

      Howard, Rt Hon Michael

      Cran, James

      Hughes, Simon (Southwaik N)

      Cunningham, Ms Roseanna

      Hunter, Andrew

      (Perth)

      Jack, Rt Hon Michael

      Curry, Rt Hon David

      Jenkin, Bernard

      274

      Johnson Smith,

      Rowe, Andrew (Faversham)

      Rt Hon Sir Geoffrey

      Ruffley, David

      Jones, Nigel (Cheltenham)

      Russell, Bob (Colchester)

      Keetch, Paul

      St Aubyn, Nick

      Kennedy, Charles (Ross Skye)

      Salmond, Alex

      Key, Robert

      Sanders, Adrian

      King, Rt Hon Tom (Bridgwater)

      Sayeed, Jonathan

      Kirkbride, Miss Julie

      Shephard, Rt Hon Mrs Gillian

      Kirkwood, Archy

      Simpson, Keith (Mid-Norfolk)

      Laing, Mrs Eleanor

      Smith, Sir Robert (W Ab'd'ns)

      Lait, Mrs Jacqui

      Soames, Nicholas

      Lansley, Andrew

      Spelman, Mrs Caroline

      Leigh, Edward

      Spring, Richard

      Letwin, Oliver

      Stanley, Rt Hon Sir John

      Lewis, Dr Julian (New Forest E)

      Steen, Anthony

      Lidington, David

      Streeter, Gary

      Lilley, Rt Hon Peter

      Swayne, Desmond

      Livsey, Richard

      Swinney, John

      Llwyd, Elfyn

      Syms, Robert

      Loughton, Tim

      Tapsell, Sir Peter

      Luff, Peter

      Taylor, Ian (Esher & Walton)

      Lyell, Rt Hon Sir Nicholas

      Taylor, Rt Hon John D (Strangford)

      McIntosh, Miss Anne

      Taylor, John M (Solihull)

      Mackay, Andrew

      Taylor, Matthew (Truro)

      Maclean, Rt Hon David

      Thompson, William

      Maclennan, Rt Hon Robert

      Tonge, Dr Jenny

      McLoughlin, Patrick

      Townend, John

      Madel, Sir David

      Tredinnick, David

      Maples, John

      Trend, Michael

      Mates, Michael

      Tyrie, Andrew

      Maude, Rt Hon Francis

      Wallace, James

      Mawhinney, Rt Hon Sir Brian

      Walter, Robert

      May, Mrs Theresa

      Wardle, Charles

      Michie, Mrs Ray (Argyll & Bute)

      Waterson, Nigel

      Moore, Michael

      Webb, Steve

      Morgan, Alasdair (Galloway)

      Wells, Bowen

      Moss, Malcolm

      Welsh, Andrew

      Nicholls, Patrick

      Whitney, Sir Raymond

      Norman, Archie

      Whittingdale, John

      Öpik, Lembit

      Widdecombe, Rt Hon Miss Ann

      Ottaway, Richard

      Wigley, Rt Hon Dafydd

      Page, Richard

      Wilkinson, John

      Paice, James

      Willetts, David

      Paisley, Rev Ian

      Willis, Phil

      Paterson, Owen

      Winterton, Mrs Ann (Congleton)

      Prior, David

      Winterton, Nicholas (Macclesfield)

      Randall, John

      Woodward, Shaun

      Redwood, Rt Hon John

      Yeo, Tim

      Rendel, David

      Young, Rt Hon Sir George

      Robathan, Andrew

      Robertson, Laurence (Tewk'b'ry)

      Tellers for the Ayes:

      Roe, Mrs Marion (Broxbourne)

      Mr. Paul Tyler and Mr. Donald Gorrie.

      Ross, William (E Lond'y)

      NOES

      Abbott, Ms Diane

      Betts, Clive

      Ainger, Nick

      Blears, Ms Hazel

      Ainsworth, Robert (Cov'try NE)

      Blizzard, Bob

      Allen, Graham

      Boateng, Paul

      Anderson, Donald (Swansea E)

      Borrow, David

      Anderson, Janet (Rossendale)

      Bradshaw, Ben

      Armstrong, Ms Hilary

      Brown, Rt Hon Nick (Newcastle E)

      Ashton, Joe

      Brown, Russell (Dumfries)

      Atkins, Charlotte

      Browne, Desmond

      Austin, John

      Buck, Ms Karen

      Barnes, Harry

      Burden, Richard

      Barron, Kevin

      Burgon, Colin

      Battle, John

      Butler, Mrs Christine

      Bayley, Hugh

      Byers, Stephen

      Beckett, Rt Hon Mrs Margaret

      Caborn, Richard

      Begg, Miss Anne

      Campbell, Alan (Tynemouth)

      Bennett, Andrew F

      Campbell, Mrs Anne (C'bridge)

      Benton, Joe

      Campbell, Ronnie (Blyth V)

      Bermingham, Gerald

      Campbell-Savours, Dale

      Berry, Roger

      Canavan, Dennis

      Best, Harold

      Casale, Roger

      275

      Caton, Martin

      Grocott, Bruce

      Chapman, Ben (Wirral S)

      Grogan, John

      Chaytor, David

      Hain, Peter

      Chisholm, Malcolm

      Hall, Mike (Weaver Vale)

      Clapham, Michael

      Hall, Patrick (Bedford)

      Clark, Rt Hon Dr David (S Shields)

      Hamilton, Fabian (Leeds NE)

      Clark, Dr Lynda

      Hanson, David

      (Edinburgh Pentlands)

      Harman, Rt Hon Ms Harriet

      Clark, Paul (Gillingham)

      Heal, Mrs Sylvia

      Clarke, Eric (Midlothian)

      Healey, John

      Clarke, Rt Hon Tom (Coatbridge)

      Henderson, Ivan (Harwich)

      Clelland, David

      Hepburn, Stephen

      Clwyd, Ann

      Heppell, John

      Coaker, Vernon

      Hesford, Stephen

      Coffey, Ms Ann

      Hewitt, Ms Patricia

      Cohen, Harry

      Hill, Keith

      Coleman, Iain

      Hinchliffe, David

      Colman, Tony

      Home Robertson, John

      Connarty, Michael

      Hoon, Geoffrey

      Cook, Frank (Stockton N)

      Hope, Phil

      Cooper, Yvette

      Hopkins, Kelvin

      Corbyn, Jeremy

      Howarth, Alan (Newport E)

      Corston, Ms Jean

      Howarth, George (Knowsley N)

      Crausby, David

      Howells, Dr Kim

      Cryer, Mrs Ann (Keighley)

      Hoyle, Lindsay

      Cryer, John (Hornchurch)

      Hughes, Ms Beverley (Stretford)

      Cunningham, Rt Hon Dr John

      Hughes, Kevin (Doncaster N)

      (Copeland)

      Hutton, John

      Dalyell, Tam

      Iddon, Dr Brian

      Darling, Rt Hon Alistair

      Illsley, Eric

      Darvill, Keith

      Ingram, Adam

      Davey, Valerie (Bristol W)

      Jackson, Ms Glenda (Hampstead)

      Davidson, Ian

      Jackson, Helen (Hillsborough)

      Davies, Geraint (Croydon C)

      Jamieson, David

      Davies, Rt Hon Ron (Caerphilly)

      Jenkins, Brian

      Davis, Terry (B'ham Hodge H)

      Johnson, Alan (Hull W & Hessle)

      Dawson, Hilton

      Johnson, Miss Melanie

      Dean, Mrs Janet

      (Welwyn Hatfield)

      Denham, John

      Jones, Barry (Alyn & Deeside)

      Dewar, Rt Hon Donald

      Jones, Helen (Warrington N)

      Dismore, Andrew

      Jones, Ms Jenny

      Dobbin, Jim

      (Wolverh'ton SW)

      Dobson, Rt Hon Frank

      Jones, Jon Owen (Cardiff C)

      Donohoe, Brian H

      Jones, Dr Lynne (Selly Oak)

      Doran, Frank

      Jones, Martyn (Clwyd S)

      Drew, David

      Kaufman, Rt Hon Gerald

      Drown, Ms Julia

      Keeble, Ms Sally

      Eagle, Angela (Wallasey)

      Keen, Alan (Feltham & Heston)

      Eagle, Maria (L'pool Garston)

      Keen, Ann (Brentford & Isleworth)

      Edwards, Huw

      Kelly, Ms Ruth

      Efford, Clive

      Kemp, Fraser

      Ellman, Mrs Louise

      Kilfoyle, Peter

      Ennis, Jeff

      King, Ms Oona (Bethnal Green)

      Etherington, Bill

      Kumar, Dr Ashok

      Field, Rt Hon Frank

      Ladyman, Dr Stephen

      Fisher, Mark

      Laxton, Bob

      Fitzpatrick, Jim

      Lepper, David

      Fitzsimons, Lorna

      Leslie, Christopher

      Flynn, Paul

      Levitt, Tom

      Follett, Barbara

      Lewis, Ivan (Bury S)

      Foster, Rt Hon Derek

      Linton, Martin

      Foster, Michael J (Worcester)

      Livingstone, Ken

      Galbraith, Sam

      Lock, David

      Galloway, George

      Love, Andrew

      Gapes, Mike

      McAllion, John

      Gardiner, Barry

      McAvoy, Thomas

      George, Bruce (Walsall S)

      McCabe, Steve

      Gerrard, Neil

      McCafferty, Ms Chris

      Gibson, Dr Ian

      McCartney, Ian (Makerfield)

      Godsiff, Roger

      McDonagh, Siobhain

      Goggins, Paul

      Macdonald, Calum

      Golding, Mrs Llin

      McFall, John

      Gordon, Mrs Eileen

      McGuire, Mrs Anne

      Griffiths, Jane (Reading E)

      McIsaac, Shona

      Griffiths, Nigel (Edinburgh S)

      McKenna, Mrs Rosemary

      Griffiths, Win (Bridgend)

      McLeish, Henry

      276

      McNamara, Kevin

      Savidge, Malcolm

      McNulty, Tony

      Sawford, Phil

      MacShane, Denis

      Sheerman, Barry

      Mactaggart, Fiona

      Sheldon, Rt Hon Robert

      McWalter, Tony

      Short, Rt Hon Clare

      McWilliam, John

      Simpson, Alan (Nottingham S)

      Mahon, Mrs Alice

      Skinner, Dennis

      Mallaber, Judy

      Smith, Rt Hon Andrew (Oxford E)

      Mandelson, Peter

      Smith, Angela (Basildon)

      Marek, Dr John

      Smith, Miss Geraldine

      Marsden, Gordon (Blackpool S)

      (Morecambe & Lunesdale)

      Marsden, Paul (Shrewsbury)

      Smith, Jacqui (Redditch)

      Marshall, David (Shettleston)

      Smith, Llew (Blaenau Gwent)

      Marshall, Jim (Leicester S)

      Snape, Peter

      Marshall-Andrews, Robert

      Soley, Clive

      Martlew, Eric

      Southworth, Ms Helen

      Meacher, Rt Hon Michael

      Squire, Ms Rachel

      Meale, Alan

      Steinberg, Gerry

      Michael, Alun

      Stevenson, George

      Michie, Bill (Shef'ld Heeley)

      Stewart, David (Inverness E)

      Milburn, Alan

      Stinchcombe, Paul

      Miller, Andrew

      Straw, Rt Hon Jack

      Mitchell, Austin

      Stringer, Graham

      Moffatt, Laura

      Stuart, Ms Gisela

      Moran, Ms Margaret

      Sutcliffe, Gerry

      Morgan, Ms Julie (Cardiff N)

      Taylor, Rt Hon Mrs Ann

      Morgan, Rhodri (Cardiff W)

      (Dewsbury)

      Morris, Ms Estelle (B'ham Yardley)

      Taylor, Ms Dari (Stockton S)

      Mudie, George

      Taylor, David (NW Leics)

      Murphy, Denis (Wansbeck)

      Thomas, Gareth (Clwyd W)

      Norris, Dan

      Thomas, Gareth R (Harrow W)

      O'Brien, Bill (Normanton)

      Timms, Stephen

      O'Hara, Eddie

      Tipping, Paddy

      Olner, Bill

      Todd, Mark

      Organ, Mrs Diana

      Touhig, Don

      Osborne, Ms Sandra

      Trickett, Jon

      Palmer, Dr Nick

      Truswell, Paul

      Pearson, Ian

      Turner, Dennis (Wolverh'ton SE)

      Pendry, Tom

      Turner, Dr George (NW Norfolk)

      Pickthall, Colin

      Twigg, Derek (Halton)

      Pike, Peter L

      Twigg, Stephen (Enfield)

      Plaskitt, James

      Vaz, Keith

      Pollard, Kerry

      Vis, Dr Rudi

      Pond, Chris

      Walley, Ms Joan

      Pope, Greg

      Wareing, Robert N

      Pound, Stephen

      Watts, David

      Powell, Sir Raymond

      White, Brian

      Prentice, Ms Bridget (Lewisham E)

      Whitehead, Dr Alan

      Prentice, Gordon (Pendle)

      Wicks, Malcolm

      Primarolo, Dawn

      Williams, Rt Hon Alan

      Prosser, Gwyn

      (Swansea W)

      Purchase, Ken

      Williams, Alan W (E Carmarthen)

      Quin, Ms Joyce

      Williams, Mrs Betty (Conwy)

      Rammell, Bill

      Winnick, David

      Rapson, Syd

      Winterton, Ms Rosie (Doncaster C)

      Robertson, Rt Hon George

      Wise, Audrey

      (Hamilton S)

      Wood, Mike

      Robinson, Geoffrey (Cov'try NW)

      Woolas, Phil

      Rooker, Jeff

      Worthington, Tony

      Rooney, Terry

      Wray, James

      Ross, Ernie (Dundee W)

      Wright, Anthony D (Gt Yarmouth)

      Roy, Frank

      Ruane, Chris

      Tellers for the Noes:

      Russell, Ms Christine (Chester)

      Jane Kennedy and Mr. Jim Dowd.

      Ryan, Ms Joan

      Question accordingly negatived.
      Mr. James Paice: On a point of order, Mr. Deputy Speaker. Would you ask the Clerks to inspect the voting list to discover whether the Minister of Agriculture, Fisheries and Food voted? As the Minister responsible for a very controversial piece of legislation, which has upset farmers and consumers throughout the country, he had the discourtesy not to

      277
      appear for the debate, although he was seen elsewhere in the precincts of the House. If he voted, he could clearly have been present for the debate.
      Mr. Charles Kennedy: Further to that point of order, Mr. Deputy Speaker. The House is relieved to see the Minister of Agriculture behind the Chair. May we have confirmation that, contrary to one rumour that ran through the Lobby, he has not resigned?
      Mr. Deputy Speaker: The hon. Member's point of order takes the matter even further away from those on which the Chair rules. The record will be evident to everyone tomorrow.

      PETITION

        Under-age Drinking
        11.42 pm
        Mr. Paul Truswell: It is my pleasure to present this petition, which has been signed by 1,200 of my constituents. It concerns the tragic death of 14-year-old John Knowles. It states:
        The petition of the citizens of Pudsey Constituency
        Declares that we support Mr. and Mrs. John Knowles of Calverley, Pudsey, and our MP Paul Truswell in their campaign to amend the Licensing Act 1964 following the death of 14-year-old David Knowles. David died when he ran across the Stanningley Bypass, Pudsey, after consuming three cans of lager. He had purchased the alcohol for himself and a friend on two occasions from an off licence in Pudsey. Following police investigations, the Crown Prosecution Service initiated proceedings against those who had sold David the alcohol. This prosecution could not proceed because of the precedent set by the appeal of Russell v. DPP, December 1996. This case confirmed that people selling to persons under 18 can be found guilty under section 169(1) of the Act only if they are the licensee or the directly employed servants of the licensee.
        In David's case, those who sold him the alcohol were employed by a national off licence chain, and not by the person whose name appears on the licence operating at their place of work. They were therefore immune from prosecution.
        The Petitioners therefore request the House of Commons amend the Licensing Act 1964 to correct this major defect in the law which no longer provides the protection to people under 18 originally intended.
        And the Petitioners remain etc.
        To lie upon the Table.

        Child Care Workers (Registration)
        Motion made, and Question proposed, That this House do now adjourn.—[Mr. Dowd.]
        11.44 pm
        Mrs. Jackie Ballard: I am grateful for the opportunity to raise this important matter. I understand that the Government are committed to a national child care strategy, and I applaud that end. They have also said many times that the provision of child care is crucial to their welfare-to-work strategy. However, there is an urgent need to ensure that there are adequate resources to regulate and monitor child care standards and that parents can have access to information about the people to whom they are entrusting their precious children.
        Many working parents juggle with a variety of child care providers, including friends and relatives, live-in nannies—who are no longer only the province of the very rich, but often the resource of the moderately well-off—after-school clubs, child minders, holiday play schemes, creches and nurseries. With that in mind, I hope that the Government will be persuaded to introduce a system of national registration for all child care workers regardless of the setting in which they work.
        As I am sure the House knows, a reasonably thorough system for the registration of child minders is carried out by local authorities. However, child minders can move to other local authority areas and seek registration there without revealing any problems that may have occurred in their original local authority area. There is no way of checking unless they admit to having been registered elsewhere.
        There are no registration procedures, even locally, for people who work as nannies in the child's home. That is to the detriment of all the parties concerned: the child, the parent and the person providing the child care. The child is being cared for by someone who will not have been subject to any police checks and who may not even have had any relevant training. Parents have no way of checking a prospective nanny's background, such as by contacting previous employers—unless the nanny divulges their names—or by checking for relevant criminal convictions. They can get no independent view of whether the person whom they are considering for looking after their child would be suitable. They have only the references that the nanny chooses to supply.
        Nannies are left to negotiate whatever terms and conditions they can with prospective employers. There is often no limit to the hours of work or time on call expected. They are often exploited by employers because there is no legal framework or registration system that could help to protect their employment conditions or rights. Last year, the case of Louise Woodward showed the potential risks of asking a young, inexperienced woman to work long hours looking after two demanding young children. Surely that is a case—and there are many others—which shows that a fairly simple change in the law could significantly reduce the risk of further incidents of harm to young children.
        A national registration system for child care workers would also help prevent unsuitable people from being able to move from one local authority area to another. If someone works at a children's home in one area and leaves after complaints, but is not convicted of any

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        offence, there is often no way in which another local authority can be aware of it when considering whether to offer that person employment. A national registration scheme would allow people to be struck off in a manner similar to doctors if found guilty of professional misconduct.
        Such a scheme could also help to increase the status of child care workers and give them recognition for the valuable role that they perform. On gaining a recognised qualification, people would apply to a national body for registration. The registration system could have a requirement for the individual to notify the body of any changes in his or her circumstances. There could also be a requirement for the individual to keep updated and take part in regular training. As the Secretary of State for Social Security said recently:
        "Childcare is a fundamental part of Britain's infrastructure, on a par with transport or communications."
        The Professional Association of Nursery Nurses is totally in support of the registration of child care workers and so is the Playpen Nanny Registration campaign, which was launched last July in the wake of the Louise Woodward case. It tells me that, in opposition, the Labour party was also very supportive of the idea of a national child care registration scheme, so I hope that the Government will consider a scheme for national registration as it would significantly increase the protection offered to children cared for in a variety of settings and to the workers providing that care.
        11.50 pm
        Mr. Steve McCabe: I must acknowledge the sincere concern of the hon. Member for Taunton (Mrs. Ballard) about these matters. However, I wonder whether she is being a little too narrow in concentrating so much on nannies. As she acknowledges, we already have registration for child minders and nurseries, under the auspices of local authority licensing. Tragically, as we saw recently in the case of Alex Rae in Bolton, that form of registration affords little protection if the child minder and nursery owner do not choose to follow the local authority recommendations.
        I also wonder exactly how nannies would be registered under the hon. Lady's proposals. It seems to be a complex issue. About 150,000 people are engaged in all sorts of child care, some in their own homes and some in local authority, voluntary and private settings. We also know that about 70 per cent. of those engaged in residential child care have no qualifications.
        The hon. Lady said that she wanted a register to which people would apply on receipt of qualifications. If we had that sort of register, we would exclude hundreds of thousands of people who are already engaged in child care. I wonder whether that is the way forward.
        A lot of work has been done on the subject. Roy Parker's report in 1990, "Safeguarding Standards", made a number of recommendations and the 1997 report of the General Social Care Council's information group also made a number of recommendations. What the reports have in common is that they both imply a register with different levels of registration because they recognise that there has to be a procedure for registering those with qualifications, but that there also has to be a process for
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        ensuring that those already engaged in work obtain qualifications. The reports both recommend a multi-level register, where people could be registered when in employment, but where there would be a target for obtaining qualifications, so that registration was not only a safeguard, but was aimed at consciously driving up standards.
        My one point of issue with the hon. Lady is that I believe that we need a comprehensive framework both to safeguard children and to drive up standards among those who work with children. To take action largely in respect of nannies, without having regard for the variety of all those who work in other settings, could be a short-term measure which was of limited value and ignored a considerable body of work carried out in this country. Although I support the concept of registration, my plea is that we should not rush in. We should go for a comprehensive framework and aim to drive up standards among those who do not have qualifications as well as to register those who already have qualifications.
        11.54 pm
        The Parliamentary Under-Secretary of State for Health (Mr. Paul Boateng): I congratulate the hon. Member for Taunton (Mrs. Ballard) on what I believe is her first Adjournment debate.
        Mrs. Ballard: Second.
        Mr. Boateng: She has indeed been fortunate to have secured two Adjournment debates in her short time in the House. I congratulate her on choosing, for her second Adjournment debate, a topic of importance. The question of how we train and support child care workers is one that raises issues that go to the heart of the nurturing of children and young people and the circumstances in which they are brought up.
        The hon. Lady concentrated specifically on nursery nurses and nannies, which is an important matter, not least because it touches on people's own homes and the personal arrangements that they choose to make in respect of the upbringing of their children. I would submit that such factors put nannies in particular in a different category from the generality of child care workers, so the response is necessarily a different one.
        The debate gives us the opportunity to highlight the considerable success of the Children Act 1989 in providing a proper regulatory mechanism for those who provide services for, or work with, babies and often with vulnerable young children. It also gives me an opportunity to signal to the House the way in which my hon. Friends in the Department for Education and Employment and I are taking forward the issue of rationalising and streamlining the regulation, inspection and enforcement of early-years provision. We have an opportunity to make a real difference through the interventions we make in lives of children and, in so doing, to add enormous value in terms of their capacity to benefit from education in later life. The child development and education aspects of this issue are obviously important.
        About 100,000 child minders, 5,700 day nurseries, 16,500 playgroups, 2,500 out-of-school child care projects and 4,800 holiday play schemes are registered under part X of the 1989 Act. Regulation ensures that acceptable standards are in place for the safety of our youngest

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        children and for the reassurance of their parents. The range of standards in the Act and its guidance are important when children are cared for on the premises of others, be those day nurseries, kindergartens, playgroups, pre-school or the homes of child minders. They ensure that children in such care are looked after by suitable people in suitable premises.
        The legislation was not intended to cover those who care for babies and small children in the children's homes. There is a balance to be struck, as I suggested at the beginning of my remarks, between the rights of parents to make arrangements for the care of their children in their homes and the safety needs of those children. To most parents, who often wish to call on informal care arrangements provided by members of their families, formal regulation would be an unacceptable intrusion. When parents ask the teenage child of a friend to help with babysitting, they do not expect the state to interfere in such arrangements.
        The Act does not regulate carers such as nannies and au pairs. In such circumstances, it is vital for parents to check carefully all those whom they employ in their homes to care for their children. As parents, they must take on the responsibility of ensuring that the person employed to look after their children is fit and proper to undertake that most important of roles. No registration or regulation system can be a substitute for the care that a parent should take in making such decisions. However, we welcome the efforts of those, such as nanny agencies, who provide information so that parents can make an informed choice when they take the decisions that can be of such crucial importance to their children.
        It is also important that parents should inform themselves of the qualities that they should seek in those who care for their children. The hon. Member for Taunton mentioned some of the agencies that make such information available to parents. We shall also consider how training opportunities for those acting as nannies and au pairs can be made more accessible. It is clearly desirable that such opportunities should be made available to people who choose to do such work so that they are better able to add value to the lives of the children for whom they care.
        My hon. Friend the Member for Birmingham, Hall Green (Mr. McCabe) referred to the practicalities of registration, and the hon. Member for Taunton will, I am sure, recognise that we must take those into account. It is not practical to register every type of child care of short duration. Indeed, creches run for less than two hours a day or supervised activities provided on fewer than six occasions a year are not currently required to be registered and it would not be practical to require the registration of such facilities.
        However, that does not abrogate the parental responsibility to check that children are properly cared for in such facilities. If parents leave their child at a creche at a fete or a similar event, they have a duty to ensure that the arrangements for caring for their child are satisfactory. It is not the role of the state to intervene in parents' lives in such a way.
        A case was recently put before the House by the hon. Member for Doncaster, Central (Ms Winterton) concerning a problem faced by the social services in Doncaster. As a result, the local social services department has developed a good practice guide for
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        short-term facilities to ensure that they are safe and proper places in which to leave children. The hon. Member for Taunton has helped us with tonight's debate. We shall consider how such material might be disseminated and adopted more widely on the voluntary, good practice basis.
        Similarly, it is a matter for the Department of Health and the Department of Trade and Industry how agencies that provide nannies for use in a domestic situation might best be helped to ensure that such nannies are the sort of people that we would want to work in our homes, looking after our children.
        There are also important issues regarding the position of independent schools, the fact that they are taking care of progressively younger children, the role of social services departments in that regard, and the interface between social services departments and the Office for Standards in Education.
        Obviously, we want closer co-operation between social services departments and education departments in relation to the early years. As a national child care strategy develops, we want arrangements to be made throughout Government that will protect and nurture the interests of children and their development while respecting the privacy of people's homes and the peculiarly personal relationship that will always exist between the employers of a nanny, an au pair or someone brought into the home to provide such services, and the child and parent.
        I shall say one or two words in response to points raised by the hon. Member for Taunton and my hon. Friend the Member for Hall Green about the future regulation of the social care sector. We have committed ourselves to the establishment of a general social care council. That is an important step forward, not least because it assumes responsibility for the development of professional standards in social care, and the link between the development of those standards and training.
        Inevitably, there will be an impact on the regulation and discipline of workers in child care. However, it is important to understand that the way forward will not necessarily involve nannies or those working in that type of private domestic capacity. The arguments as to the appropriateness of registration will continue, even after the council is established.
        Undoubtedly, the surest way of ensuring that we promote an agenda that is about standards—about using every opportunity to improve the quality of child care available to our children in a number of ***settings—is to recognise the vital role in that regard of education and relevant training. Training should be geared to meeting the vocational needs of people seeking to enter this area of work. It should be firmly rooted in common sense and good practice and recognise the balances that must be achieved. We must ensure that a range of provision is available and that parents take informed choices.
        The hon. Member for Taunton raises an important issue, to which the House will undoubtedly return from time to time. It is right that we should. I hope that the hon. Lady appreciates that, while we are not able to go as far as she wants regarding the registration of nannies, we recognise that it is an important issue. It must be monitored carefully and viewed within the wider context of child care provision.

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        It is important that, as we take this agenda forward, we ensure that the consultation process is open to a wider debate and a wide cross-section of views. It is also important that all those who have a stake in good-quality education and child care feel that they are in a position to influence the development of a regulatory system that meets the needs of the times in which we live—times in which people will increasingly look to order their lives by utilising a range of provision in this area.
        Dr. Peter Brand: Will the Minister also consider another group of vulnerable children who are not currently protected either by the Children Act 1989 or education legislation? The parents of those children are not in a position to exercise the judgment to which the Minister referred. Such children come to this country to learn about the British way of life and the English language and, at present, have no protection. I am very worried about some of the domestic placements that are made for those children.
        Mr. Boateng: The question of au pairs should be considered.
        Dr. Brand: With respect, I obviously did not make myself clear. I am talking about foreign schoolchildren
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        who attend language schools in this country and are placed with host families who are not vetted by any authority.
        Mr. Boateng: That is another issue. There are signs that some people are seeking to exploit such children and their parents. However, that burden should not fall first and foremost on the British taxpayer and the state. It is important for any parent who seeks to make decisions about their children's education in a foreign country to take great care before launching their children into that country's education system. I do not believe that it is the primary responsibility of the state to take up the cudgels on behalf of such parents.
        The state must ensure that there is transparency, accountability and proper regulation of a range of establishments in this country. We must also ensure that in this field—or, indeed, in any other—we do not abrogate the proper parental responsibility to take care and make sure that they are informed about the arrangements that they make for their children. If the hon. Gentleman suggests that we must assume responsibility for that area—[Interruption.] I hear what the hon. Gentleman says, but I am not persuaded.
        We have an existing responsibility to will fulfil in terms of the development of our national child care policy. We must ensure that we have the appropriate range of safeguards in place. We shall meet that responsibility. The hon. Lady's debate tonight has opened the matter for discussion on the Floor of the House in a way that contributes towards an objective that I know we all share.
        Question put and agreed to.
        Adjourned accordingly at thirteen minutes past Twelve midnight.