POWER TO CALL FOR WITNESSES AND DOCUMENTS

HC Deb 29 January 1998 vol 305 cc571-99 7.45 pm

Mr. Bernard Jenkin (North Essex)

I beg to move amendment No. 163, in page 11, line 8, after 'Parliament', insert 'by a two-thirds majority'.

The Chairman of Ways and Means (Sir Alan Haselhurst)

With this, it will be convenient to discuss the following: Government amendments Nos. 223 and 224.

Amendment No. 43, in page 11, leave out lines 16 to 21.

Amendment No. 102, in page 11, leave out line 17.

Amendment No. 161, in page 11, leave out line 18.

Amendment No. 162, in page 11, line 21, at end insert— (3A) The power in subsection (1) is not exercisable in relation to a Minister of the Crown'.

Amendment No. 103, in page 11, leave out lines 23 and 24.

Government amendment No. 225.

Amendment No. 164, in page 11, line 25, leave out which exercises the judicial power of the State'.

Amendment No. 165, in page 11, line 29, after "otherwiser)", insert and if two thirds of more of its membership so resolve'.

Amendment No. 166, in page 12, line 3, after "Scotland', add or in a court exercising jurisdiction in those parts of the United Kingdom in which the person resides or works'.

Government amendment No. 226.

Amendment No. 167, in clause 24, clause 24, page 12, line 8, after 'refuses', insert or fails without reasonable excuse,'.

Amendment No. 249, in clause 24, page 12, line 8, after "refuses' insert 'or fails without reasonable cause.'.

Government amendment No. 227.

Amendment No. 168, in clause 25, clause 25, page 12, line 29, after 'oath', insert 'or affirmation'.

Government amendment No. 228.

Amendment No. 104, in clause 83, clause 83, page 38, line 21, at end insert— (3A) The Parliament shall be entitled to require any representative of a cross-border public body—

1. (a) to attend its proceedings for the purpose of giving evidence, or
2. (b) to produce documents in his custody or under his control, in respect of matters within the responsibility of that body which relate to or affect Scotland.'.

New clause 2—Power to request witnesses and documents—

'(1) The Parliament may request any person—

1. (a) to attend its proceedings for the purpose of giving evidence, or
2. (b) to produce documents in his custody or under his control, relating to any of the matters mentioned in subsection (2).

(2) The matters to which subsection (1)(b) applies are reserved matters in so far as they affect Scotland.

(3) In the event of a person to whom this section applies declining to give evidence or produce documents, he shall inform the Clerk in writing of the reasons for his refusal.

(4) The power contained in subsection (1) may be exercised by a committee or sub-committee of the Parliament only if the committee or sub-committee is expressly authorised to do so (whether by standing orders or otherwise).

(5) The Clerk shall give the person in question notice in writing specifying—

1. (a) the time and place at which the person is invited to attend and the particular matters relating to which he is requested to give evidence, or
2. (b) the documents, or types of documents, which he is to produce, the date by which he is requested to produce them and the particular matters to which they relate.

(6) Such notice shall be given—

1. (a) in the case of an individual, by sending it, by registered post or the recorded delivery service, addressed to him at his usual or last known address or, where he has given an address for service, at that address, or
2. (b) in any other case, by sending it, by registered post or the recorded delivery service, addressed to the person at the person's registered or principal office.

(7) A person is not obliged under this section to answer any question or produce any document which he would be entitled to refuse to answer or produce in proceedings in a court in Scotland.'.

Mr. Jenkin

I shall endeavour to explain to the Committee what the amendments are about, for the benefit of those who do not understand—a category which, until a little while ago, included me.

We are referring the power to summon witnesses and documents. This Parliament's power to summon witnesses and documents is absolute; it is one of our absolute prerogatives. It is not recorded in any statute, but is something that we inherited, so to speak, from the Crown. It is referred to only in "Erskine May", which has no statutory authority but is one of the sources of our constitution.

The power is extremely draconian, and it is one that we rarely use. If the Scottish Parliament is to have analogous powers, they will have to be granted by this Parliament by statute. That is what the clause is principally about.

It is proposed that the Scottish Parliament's powers will be prescribed, rather than unlimited like the powers of this Parliament. The debate will be about what prescriptions and limits for those powers exist, and how they are likely to be applied.

The amendments reflect two main concerns: first, that the extremely draconian power should be exercised carefully, not lightly or wantonly; and secondly, that the power should not extend to summoning people and documents that are not the responsibility of the Scottish Parliament.

Amendment No. 163 would limit the use of the power to circumstances in which a two thirds majority of the Parliament votes to exercise it, and Amendment No. 165 would apply that principle to Committees. The exercise of the power could be left entirely to the Scottish Parliament's discretion, but it is rarely used at Westminster, mainly because, when people are invited to attend Parliament or a Committee, they regard it as a privilege and an opportunity to present their views. Even the most reluctant witnesses are encouraged to attend voluntarily by a Clerk merely saying that we have the power. Nevertheless, the power is available for use.

Making the power explicit in the Bill makes it seem a more everyday power than it should be. Our contention is simply that the draconian power should be used only when there is consensus in the Scottish Parliament. In this Parliament, it would be unlikely for even the majority party to require the attendance of a witness or require documents to be produced against the wishes of, for example, the main Opposition party. We want to reflect in the Bill, for the Scottish Parliament, that natural tendency to consensus.

Amendments Nos. 161, 162 and 164 are concerned with who should be subject to the power. Matters are not made any simpler for us by Government amendment No. 224. It appears that the Government want to trim the Parliament's right to summon Ministers of the Crown from the original intention as expressed in the Bill, because under the amendment Ministers would not be subject to compulsion on questions relating to functions exercisable under joint responsibility, but would still be subject to it on devolved matters in which they have a direct involvement.

I look forward to a full explanation of the reasons behind amendment No. 224 and of the distinctions intended in the wording. My fear is that the natural lines of accountability will still be blurred. The principle should surely be that United Kingdom Ministers are responsible and answerable to the United Kingdom Parliament, and that Scottish Ministers should be responsible to the Scottish Parliament.

Where their responsibilities overlap, we should not expect Scottish Ministers to be responsible to this Parliament or United Kingdom Ministers to be responsible to the Scottish Parliament. They must explain their functions and their relationships with each other to their own respective Parliaments.

Obviously, as we are a sovereign Parliament, we would have the power to summon Scottish Ministers to appear here; but I would suggest that we would want to use it extremely sparingly. Our intention in amendments Nos. 161 and 162 is to create clear lines of accountability, so that United Kingdom Ministers are not automatically expected to be answerable to the Scottish Parliament for what they do in the United Kingdom Government, although of course one would expect them to make themselves available as a resource for informing debate in the Scottish Parliament and to give evidence and information there when asked to do so. I should be interested in the Government's view of that principle.

Amendment No. 164 is designed to widen the exclusion of those acting in a judicial capacity. I am interested to see that—perhaps in the spirit of the new politics, which is finally beginning to touch the Conservative party—the Liberal Democrats are supporting our amendment.

It is obvious that judges should not be called to account to a legislature for their decisions, but the same surely applies to those who act in a judicial or quasi-judicial capacity, even if it is not a state capacity: for example, the heads of self-regulatory organisations; ombudsmen of private industries; arbitrators, who might be dealing with contracts or insurance matters; and—this may be a matter dear to the hearts of Liberal Democrats—the Church courts, which are non-state courts but have a judicial capacity none the less.

Amendments Nos. 167 and 168 are intended as clarifications and suggested improvements. The former would tighten the requirement for people to attend if summoned, and the latter would allow for an affirmation as an alternative to an oath.

The Government, I fear, have the luxury of a middle course, because the amendments tabled by the Scottish National party suggest that anyone in the United Kingdom should be subject to the power. That reminds us that we are dealing with United Kingdom legislation that has the force of law in England, Wales and Northern Ireland as well as Scotland. The nationalists would like to make any person in the United Kingdom who is concerned with the functions set out under subsection (2) subject to summons by the Scottish Parliament. One might say, "They would say that, wouldn't they?"

Judging by amendment No. 43, the hon. Member for Falkirk, West (Mr. Canavan) shares our view that Ministers of the Crown, who are answerable to the United Kingdom Parliament, should be immune from compulsion to attend the Scottish Parliament. If he does not, I should be interested to hear what he says.

Mr. Canavan

I listened carefully to the hon. Member for North Essex (Mr. Jenkin). Yet again, we have heard a clear implication from the Tory Front Bench that the Scottish Parliament cannot be trusted with the powers proposed for it both in the White Paper and in the Bill. The hon. Gentleman admitted that Westminster has unlimited and untrammelled powers to summon any person or to call for any papers. The powers are not limited at all in statute, and apparently derive in some mystical way from the Crown; but the Scottish Parliament's powers to summon people and call for papers are clearly defined in the Bill. Yet the Tories somehow cannot stomach that, and say that a majority of two thirds of the Parliament is needed before the powers are used.

Mr. Jenkin

The distinction is that, whereas this Parliament has absolute power, we are delegating powers to the Scottish Parliament. It is incumbent on us to make it clear in the Bill how we expect those powers to be used. We heard from the Secretary of State yesterday about supremacy, and he made it clear that this Parliament remains sovereign. Therefore, although we are delegating powers for which the Scottish Parliament will be responsible, we remain indirectly responsible for the way in which they are exercised. In that respect, it is not an insult to the Scottish Parliament to suggest that this Parliament remains sovereign and ultimately responsible for exercising the powers of the Scottish Parliament. It is a practical fact that, if the Scottish Parliament were to misuse its powers, the democratically elected representatives of the Scottish people might well come here to ask us to address the situation.

8 pm

Mr. Canavan

It is not a true delegation of powers to give a body certain powers while making so many conditions and ifs and buts that the body itself wonders whether it can use them. What lies at the heart of the matter is the Tories' love of and trust in this place and their distrust of the proposed Scottish Parliament. They imply that Members of the Scottish Parliament will not be responsible enough to use those powers in a reasonable manner. To describe the powers as "draconian" frankly shows either a misunderstanding or a misuse of the English language.

Mr. Jenkin

The hon. Gentleman is directing his argument towards me, but the Secretary of State drafted the clause; we are merely proposing one or two amendments to it. It is the Secretary of State who has all sorts of limits as to how the powers should be used. The hon. Gentleman should have his argument with the Secretary of State. The Secretary of State and the Opposition are arguing this point from the same perspective, but the hon. Gentleman is, frankly, arguing from a nationalist perspective—he is saying that the Scottish Parliament should exercise absolute discretion.

Mr. Canavan

The Secretary of State can speak for himself, as can the Minister, and I am sure that my right hon. Friend would state that the Bill proposes a reasonable limitation. The Opposition are proposing to shackle the Scottish Parliament absolutely—not just on this matter but on many others.

I wish to refer to amendment No. 43, standing in my name and that of my hon. Friend the Member for Dundee, East (Mr. McAllion). Clause 23(3) proposes to give a form of exemption or immunity to certain people so that they cannot be summoned to appear before the Scottish Parliament or any of its Committees. I am not too happy about that, as it could lead to a situation in which the efforts of the Scottish Parliament and its Committees to uncover the truth or to pursue justice in certain cases could be thwarted.

The Scottish Parliament could decide to set up a Committee of Inquiry into someone who had allegedly perpetrated a great injustice against the people of Scotland. The Committee might decide to summon the person or people allegedly responsible. However, those people might simply cross the border to England, or go to Wales. From my reading of clause 23(3), I understand that the Scottish Parliament could do nothing about that, unless the person or people were covered by the condition referred to at the end of clause 23(3).

The Scottish Parliament should, in certain circumstances, have powers to call Ministers of the Crown. My hon. Friend the Minister is, unquestionably, a Minister of the Crown. Could he define what is meant in the Bill by a "Minister of the Crown"? The Bill proposes that Ministers in the Scottish Administration should also have Crown approval. Does that make them Ministers of the Crown also? If so, it is absurd that Ministers of the Crown—especially Ministers in the Scots Administration—should be exempt from being summoned before the Scottish Parliament or its Committees.

The Bill proposes that UK Ministers will continue to have certain powers relating to Scotland on certain reserved matters, but also—this is important—on matters for which there is some joint or shared responsibility. I am not absolutely certain that the wording of my amendment is correct, but I would like to try to clarify that grey area of shared responsibility between this Parliament and the Scottish Parliament, and between the UK Government and the Scottish Administration.

The Scottish Parliament and the Scottish Administration will be responsible for industrial development and inward investment. However, the Department of Trade and Industry will retain some responsibility for these matters within a general framework covering the whole of the United Kingdom. There may be legitimate circumstances in which the Scottish Parliament could be able to summon a Minister and/or civil servants from the DTI to clarify matters on a subject under inquiry by the Scottish Parliament or one of its Committees.

Mr. John Swinney (North Tayside)

After the Bill's enactment, a number of concordats will be created to regulate areas where the Scottish Parliament and the Westminster Parliament will have some interest. Does the hon. Gentleman think that that would be a legitimate area in which the Scottish Parliament would have an interest in examining—in a wider sphere than simply the activities of the Scottish Parliament—the way in which other parties were influencing areas of policy, which might involve asking UK Ministers to appear before the Committees of the Scottish Parliament?

Mr. Canavan

That is precisely the point I am trying to make. The grey areas are not all that well defined, but there are areas where there will be joint responsibility. In the circumstances, the Scottish Parliament should have the power and the opportunity to summon UK Ministers, as well as Ministers from the Scottish Administration.

The Select Committees in this place will retain their right to summon virtually anyone. They can summon a Scottish Office Minister, the Scottish First Minister, civil servants from the Scottish Administration, people from north of the border and people from other parts of the UK. I fail to see why there should not be some degree of that ability in the Scottish Parliament.

I am not asking for complete reciprocation, because we are not talking about a completely independent state and a Parliament serving it. However, there are areas of joint responsibility, and I am not sure whether clause 23(3) covers all such circumstances. It states that the power is not exercisable in relation to a person unless he discharges functions relating to matters within subsection (2)", which refers to "devolved matters" and matters in relation to which statutory functions are exercisable by the Scottish Ministers. Does the phrase unless he discharges functions relating to matters within subsection (2) cover the categories in paragraphs (a), (b) and (c) of subsection (3), or does it cover only the category in paragraph (c), a person in Crown employment? Could a person outside Scotland or a Minister of the Crown who is a UK Minister who discharges functions relating to matters within subsection (2) be summoned by the Scottish Parliament or one of its Committees?

I note that the present tense is used in line 21 of clause 23: unless he discharges functions relating to matters within subsection (2). What about someone who used to discharge a function, such as a former UK Minister or a former civil servant? We have had cases in this Parliament that have involved more than summoning members or civil servants of the existing Administration.

When I was on the Foreign Affairs Committee's inquiry into the Belgrano, Francis Pym came. We did not have to summon him, but, if he had refused to come, we could have. Geoffrey Howe is another former Secretary of State who has been summoned. In the inquiry into the Pergau dam, George Younger came to give evidence as a former Secretary of State. I am not sure that line 21 of clause 23 would be enough to cover such circumstances, because it uses the present tense. It should say: unless he discharges or used to discharge functions relating to matters within subsection (2). That is why I have tabled the amendment.

I should be grateful if my hon. Friend the Minister replied on those points because it is very important that the Scottish Parliament and its Committees have adequate powers to summon people and call for papers to uncover the truth and give helpful reports to the Scottish Parliament and to the people of Scotland. That should include, in certain circumstances, calling people from south of the border, including UK Ministers and civil servants.

Ms Roseanna Cunningham

I have listened with interest to the debate. I am sorry that we have had yet another example of what I can only describe as an emergent Anglo-Saxon supremacist lobby that seems to see everything in terms of asserting its supremacy over us poor folk north of the border who clearly will not be capable of dealing with such nasty, complicated issues.

It is evident from the number of amendments tabled to clause 23 that there is concern about several aspects. If the Conservative Front-Bench team had examined it more carefully they might have seen why. It appears to be a retreat from what was contained in the White Paper. That gave rise to several of the amendments and to new clause 2.

The issue of clause 23 arose on Second Reading when we discussed the reservation of broadcasting. My attention was directed to it by the hon. Member for Kilmarnock and Loudoun (Mr. Browne), who is a colleague of my mine in another capacity in the Faculty of Advocates. I am sorry that he is not in his seat; he was here briefly earlier. Later in that debate, he graciously accepted that he was wrong in some of his comments, but he wanted to point out that I was equally wrong. I freely admit that, so focused was I on broadcasting, that I was partially wrong, although only in so far as I had not appreciated the extent to which the legislation differed from the White Paper on cross-border public bodies. I am grateful to him, although he may wish that he had kept quiet.

I want to discuss amendments Nos. 102 to 104, which deal with the power of the Parliament, especially in relation to cross-border public bodies, which I suspect may become a vexed question when the Parliament is in operation. Amendment No. 103 aims to open up a discussion on the precise meaning of clause 23(4)(a) in the context of the whole clause. We recognise that Government amendments Nos. 224 and 226 turn previous negatives into positives, but I am not sure that, in reality, they change much. The Government's attention may also have been drawn to clause 23 by the Second Reading debate.

8.15 pm

Government amendment No. 225 is tortuous in the extreme; it not only sheds no new light but further obscures matters. Clause 23(4)(a) states that the power in subsection (1) is not exercisable in relation to a person discharging functions of any body whose functions relate only to reserved matters". What is that meant to do in the context of subsection (2)? Amendment No. 225 would make it read: That power is not exercisable in relation to a person discharging functions of any body whose functions relate only to reserved matters in connection with the discharge by him of those functions. That further obscures the matter.

Mr. Grieve

Does the hon. Lady agree that it would be helpful to hear from the Minister what he thinks his amendments are intended to do, so that we know where the Government want to go before we decide to what parts we might object? I find the amendments hard to follow.

Ms Cunningham

I expect that the Minister will have some comments to make.

I have three questions. First, why was it felt that clause 23(4)(a) had to be inserted, especially as clause 23(2)(a) already confines the power to devolved matters? Secondly, what does Government amendment No. 225 mean? I simply do not understand it. It would not win any plain English awards in its totality. I shall not enter into what the Scots or Gaelic might be.

Amendment No. 225 may be aimed at an individual with more than one capacity—one devolved and one reserved—so that, if he was called about the one, he could not be questioned about the other by the sneaky people who will be elected to the Scottish Parliament. It is not clear. Perhaps the Minister could give examples of the sort of people that the provision is meant to catch. I cannot see what the Government are so nervous about. Clause 23, with clauses 83, 84 and 85 as drafted, seems to be designed to give a narrow interpretation of the people whom the Scottish Parliament can call before it.

On the comments of the hon. Member for North Essex (Mr. Jenkin), an independent Parliament would of course have no jurisdiction to summon people from outwith its borders to give evidence on the activities of a body affects Scotland. We are all well aware of the international dimension and the fact that many things happen outside a state's boundaries that can profoundly affect what happens within them.

There really is not much that we can do. Much as we might like to have President Clinton called here to explain his activities in Iraq or elsewhere, we know we cannot do that. However, as the Government are so fond of reminding us, the Scottish Parliament is not an independent Parliament, but a devolved Parliament, so I do not understand what objection there can be to our calling from outside Scotland those people who operate in some capacity that directly affects Scotland, albeit not necessarily in purely devolved matters.

Amendment No. 104 builds on the sentiments contained in paragraph 2.11 of the White Paper, albeit inserting the word "require" rather than "invite", so that people cannot simply refuse to come. The Scottish Parliament will be hedged about with restrictions vis-a-vis representatives from bodies dealing with reserved matters, even where those bodies have an enormous impact on Scotland which is of social or economic significance—the phrase used in the White Paper. We shall return to aspects of this question when the Committee reaches clauses 83 to 85, so I shall not stray too far.

However, I shall quote the entirety of paragraph 2.11, because it is important that people are reminded of what was promised in the White Paper. It says: In certain reserved areas the activities of other UK/GB bodies which are accountable to the UK Parliament will continue to be significant in the economic or social life of Scotland, and therefore likely to be of interest to the Scottish Parliament. The Government propose that the Scottish Parliament should be able to invite the submission of reports and the presentation of oral evidence before its committees from bodies operating in reserved areas in relation to their activities in or affecting Scotland. The White Paper goes on to list some examples of those bodies:

energy regulators such as the Office of Electricity Regulation and the Office of Gas Supply; the Office of Passenger Rail Franchising and the Office of the Rail Regulator; the Health and Safety Commission; the Commission for Racial Equality and the Equal Opportunities Commission; the Employment Service and the Benefits Agency; broadcasting and telecommunication organisations such as the BBC and the Independent Television Commission; and the Post Office. Between the White Paper and the Bill being published, that has all disappeared. The promises made in paragraph 2.11 are not allowed for in clause 23 or in clause 83. None of the examples given in the White Paper of cross-border public bodies have found their way into annexe E of the guidance notes, which is the indicative list of what the Government regard as cross-border public bodies. Therefore, we face a gaping hole in what was promised.

I note, in passing, that the Scottish Law Commission does appear in annexe E as a cross-border public body, which is an interesting concept. Under the legislation as it stands, the Scottish Parliament would be unable to require a representative from the Scottish Law Commission to appear before it and give any sort of evidence. At the same time, two bodies named in the White Paper are conspicuously absent from the annexe E list—the broadcasting bodies, the BBC and the ITC, which triggered my contribution on Second Reading. Obviously, I shall return to that subject when the Committee debates the amendments to clause 83 and schedule 5.

I want to know where precisely we can find the commitment given in paragraph 2.11 of the White paper implemented in the legislation. Why have the Government turned their backs on their promise?

Mr. McAllion

I hope that, when the hon. Member for Perth (Ms Cunningham) made her allegation that Anglo-Saxon supremacists sat on the Government Benches, she excluded me from their number.

Ms Cunningham

Absolutely.

Mr. McAllion

If there is one thing no one can accuse me of, it is of being an Anglo-Saxon anything. No doubt the Opposition Front Benchers will accuse me of making a nationalist contribution to the debate; but I would remind the House that all hon. Members are nationalists of one sort or another. There are all sorts in the House: English nationalists, such as the hon. Member for North Essex (Mr. Jenkin), who speaks for the Conservative party on Scottish affairs; British nationalists, which probably encompasses the majority of hon. Members; Welsh nationalists; Scottish nationalists in the Scottish National party and the Labour party; Irish nationalists—

Mrs. Maria Fyfe (Glasgow, Maryhill)

Glasgow nationalists.

Mr. McAllion

—and Glasgow nationalists, who sit next to me. "Nationalist" is used as a term of abuse by the official Opposition, but it is a loose term and often used inaccurately. I wish that the official Opposition would use it with greater precision, so that people could understand that nationalism is something which every party in this country believes in—it is just a question of which sort of nationalism a party supports.

During earlier debates, a whole series of amendments were rejected—especially by Labour Members—on the basis that they were too prescriptive and were trying to tell the Scottish Parliament how it should run its business. It was said that we should leave the Scottish Parliament to decide for itself how it should conduct its own affairs. I agree with that view, but clause 23, especially lines 11 to 21, is highly prescriptive about what the Scottish Parliament can do in pursuit of its own devolved affairs. That is where I find the problem lies.

The hon. Member for North Essex described the powers in clause 23 as draconian, but they are not draconian if one is exempted, and lines 11 to 21 ensure that a whole swathe of people are exempted from the powers that should be available to the Scottish Parliament to summon documents and witnesses to give evidence before their Committees on devolved issues.

The first category of exemptions is "a person outside Scotland". That is a very wide definition—there are all sorts of people outside Scotland whom the Scottish Parliament might ask to produce documents or to appear as witnesses in inquiries into devolved matters. As far as I know, Mr. Sean Connery would fall into the category of a person outside Scotland. Perhaps he intends to remain a person outside Scotland, but he certainly takes a close interest in Scottish affairs and Scottish politics—indeed, he takes a close interest in the Scottish National party and its funding. In inquiries into the way in which political parties are funded in Scotland, the Scottish Parliament might well want to summon him as a witness; but, as a person outside Scotland, he will be able to tell them to get lost. I do not think that that is a clever position for us to get ourselves into. The same would apply to Hong Kong drug traffickers, who have been known to fund the Conservative party in Scotland.

Mr. Salmond

Mr. Sean Connery would be delighted to appear before a Scottish Parliament, either as a witness or perhaps in another capacity.

Mr. McAllion

I take it that by "in another capacity" the hon. Gentleman means as a Member of the Scottish Parliament. Clause 4, which sets out the details of who can stand as a candidate, does not say that one actually has to live in Scotland. I suppose that it would be possible for Mr. Sean Connery to stand for a Scottish Parliament as an SNP candidate, get elected and then, because there is no requirement that MSPs should stay in Scotland, he could still be beyond the power of the Scottish Parliament to require him to attend and give evidence before one of its Committees. It is nonsense.

In an earlier debate, we discovered that Her Majesty the Queen and the Duke of Cornwall, the Duke of Rothesay, the Prince and Steward of Scotland, both of whom can be described as persons outside Scotland and who have the Crown interest which requires the Scottish Parliament to seek their approval before its Bills can become law, cannot be required to come before a Scottish Committee and give evidence on why the Crown interest requires them to give their assent to Scottish Bills before they can become law. The whole thing is complete nonsense.

I am especially worried about the part of the clause that says that a Minister of the Crown, or … a person in Crown employment does not have to come before the Scottish Parliament's Committees. That is a serious issue.

Let us consider the financing of a Scottish Parliament. The bulk of the Scottish Parliament's expenditure will come from the Westminster Parliament through the Scottish block grant, which is determined under the Barnett-Goschen formula. We were continually told in debates in the House that that formula would be subject to review as soon as the Scottish Parliament was set up and the Westminster Parliament began to realise how much power had been given away to the Scottish Parliament.

In fact, we were told that the formula would be subject to radical review and that that review would be carried out in Westminster by UK Ministers and civil servants. They would decide how the Barnett-Goschen formula should be altered, which would have huge implications for the Scottish Parliament, and the settlement would be imposed on the Scottish Parliament.

On page 27 of "Scotland's Parliament, Scotland's Right", the Scottish Constitutional Convention recognised that the Barnett-Goschen formula would have to be reviewed. However, it was established in the convention that that review would have to be conducted jointly by the Scottish Parliament and the Westminster Parliament.

If the Committee in a Scottish Parliament that is responsible for financial matters cannot summon any Treasury Minister, cannot ask for any Treasury documents and cannot ask any Treasury civil servant to appear before it to take part in an investigation into how the Barnett-Goschen formula might be reviewed, that is a very sorry state of affairs indeed, and one which we should not be legislating for.

Mr. Wallace

rose—

Mr. Swinney

rose—

8.30 pm

Mr. McAllion

I give way to the hon. and learned Member for Orkney and Shetland (Mr. Wallace).

Mr. Wallace

Perhaps the Minister will clarify this when he replies to the debate. The hon. Gentleman may have put it too widely when he said that the Scottish Parliament could not ask. I suspect that a Scottish Parliament could request. What it cannot do is to compel, with all the accompanying criminal sanctions. I agree with the hon. Gentleman that, if there were to be a debate in the Scottish Parliament on the future of the Barnett-Goschen formula, it would be very helpful indeed to have the attendance of Treasury Ministers and officials, but I believe that it would be permissible for them to come, although they could not be compelled under threat of criminal sanction.

Mr. McAllion

I hope that that would be the case, but I do not have a great deal of confidence. If one watches closely the way in which these debates are conducted, one sees that hon. Members continually assert the supremacy and the sovereignty of this Parliament over the Scottish Parliament. They, and they alone, will decide the funding and the finance of the Scottish Parliament through the Scottish block. I do not know whether the Scottish Parliament can request them to produce documents and to give evidence in person.

I do not want to alarm Ministers, but they will not always be there. At some time, there will be a Tory party back in power and back in office in this country, and then there could be real problems.

Mr. John Hayes (South Holland and The Deepings)

rose—

Mr. Grieve

rose

Mr. McAllion

I give way to the hon. Member for South Holland and The Deepings (Mr. Hayes).

Mr. Hayes

I am grateful to the hon. Member for Dundee—West, is it?

Mr. McAllion

East.

Mr. Hayes

East, yes. I only said that to annoy the hon. Gentleman, actually. The hon. Gentleman has mentioned supremacy, but, as we tried to explain earlier in Committee—I intervened on the hon. Gentleman then—the whole nature of sovereignty is the implied supremacy that sovereignty grants. When it comes to delegation of political power—I would go as far as to say division; there is some semantic difference between my right hon. Friend the Member for Devizes (Mr. Ancram) and me in this, but the principle is the same—one can divide political power but not sovereignty, because sovereignty implies supremacy. The hon. Gentleman does not seem to understand that, given the comments that he has made on previous days in Committee and tonight.

Hon. Members

Speech.

The First Deputy Chairman of Ways and Means (Mr. Michael J. Martin)

Order. The hon. Gentleman must sit down.

Mr. McAllion

I suspect that my hon. Friend the Member for Dundee, West (Mr. Ross) will be more upset at my being described as the hon. Member for Dundee, West than I was, if the truth be known.

The hon. Member for South Holland and The Deepings does not grasp the reality of sovereignty in the modern world. His is a public school idea of sovereignty—nanny and the housemaster and headmaster. There can be only one headmaster in the school, and so on. It need not be like that in the real world: different groups can share sovereignty.

When we are setting up a Scottish Parliament, we must establish its right to conduct its affairs, just as the Westminster Parliament can conduct its affairs. Surely the Scottish Parliament must have the right to summon witnesses, and require documents to be provided, when they affect the Scottish Parliament's interests. That is the key.

Mr. Hayes

rose—

Mr. Grieve

rose—

Mr. Swinney

rose—

Mr. McAllion

I give way to the hon. Gentleman with the glasses.

Mr. Grieve

rose—

Mr. Swinney

I thought it was me.

Mr. Grieve

In the House, we have a merger of the Executive and the legislature, so Ministers of the Crown belong to the party that commands the majority. Therefore, only in exceptional circumstances would a power to summon Ministers before the House be exercised. When one has a separate legislature, two different parties may be in power—one in each place. Does the hon. Gentleman agree that, in those circumstances, Ministers of the Crown at Westminster may require some protection from being summoned arbitrarily to—

The First Deputy Chairman

Order. Interventions must be brief.

Mr. Canavan

Sit down.

The First Deputy Chairman

Please take a seat. Interventions must be brief. We cannot have a speech. The hon. Member for Dundee, East (Mr. McAllion) is addressing the Committee.

Mr. McAllion

The hon. Gentleman does not grasp the significance of the issue. We are trying to set up a constitutional settlement that will allow a Scottish Parliament to continue to function within the United Kingdom in tandem with a Parliament at Westminster. I agree that party politics can wreck that relationship, and I accept that, if one of the parties decides to wreck that relationship, it will lead to the severing of the United Kingdom. However, I know that my party is not out to wreck that relationship; and I should have thought that the Conservatives, of all people, would not be out to wreck the Union.

Of course, members of the Scottish National party are out to wreck the Union; they have every right to wreck it, because they believe in independence. They should not be condemned for that—it is a different point of view, and when the Scottish people accept their argument, every Labour Member will accept the argument as well, because we are democrats. We accept that, if we lose the argument, we have to move with the people. I wish that the Conservative party would understand that and begin to move with the times as well and stop tabling wrecking amendments, as Conservative Members have done tonight.

I have great sympathy with the arguments made by the hon. Member for Perth (Ms Cunningham) about broadcasting, because there are serious anxieties about it. Earlier, we had a debate about whether the Scottish Parliament should facilitate the use of Gaelic as a language in the Scottish Parliament. If Gaelic is to survive, it must be encouraged on television and radio; yet broadcasting is a matter reserved for the Westminster Parliament.

The Scottish Parliament may set up a Committee to promote the use of Gaelic. It would have no power to require people from the BBC or ITV or BBC radio to produce documents or to appear as witnesses to talk about how they treat Gaelic in their broadcasting. That is very serious.

There is also the question of listed events. The Scottish cup final is very dear to many of us, although it is a long time since Celtic won it. It matters to many people in Scotland. Some time, the BBC and ITV may decide that they do not want the cup final to continue to be a listed event—that it costs too much and must be dropped, to go to Sky Television. The Scottish Parliament would be unable to summon anyone from the BBC to hold them to account for that decision. That cannot be right.

We must start thinking seriously about the implications of the way in which we keep trying to hedge the Scottish Parliament in with qualifying clauses—especially clause 23.

Finally, I say to my hon. Friend the Minister, in all sincerity, that one of my great hopes for the Scottish Parliament is that its Committee structure will not minor that in Westminster. Our Committee structure makes a mockery of Committees. Our Select Committees are very good—they are successful, in the main, and they work well—but the Standing Committees are a joke. Committee members from the Government party are told, "Do not speak. Sit there; answer your mail. You need not even listen—just vote on the amendments." Opposition Members waste time all day, talking nonsense, simply trying to reach some sort of agreement. Most Committee members know nothing about the Bill that they are speaking about.

I hope that a Scottish Parliament will set up hybrid Committees, which are Select Committees and Standing Committees, and deal with the legislation within their remit. The Committee members would become expert on their subject. Not just the Executive, but those Committees, should have the right to initiate legislation. The Chairman of the Committee, if he could achieve a majority on the Committee, could do so as well.

Such Committees will be essential to the success of the Scottish Parliament, and they will set precedents which I believe the Westminster Parliament will belatedly have to follow because the Scottish Parliament is so good. In those circumstances, we cannot hem in the Committees by denying them the powers that every ordinary Committee at Westminster has.

I plead with Ministers to think again about lines 11 to 21 of clause 23, and about the whole clause. It is too prescriptive and hems in the Scottish Parliament far too much.

Mr. Wallace

Clause 23 is important, not least because those of us who were involved in the constitutional convention, and who argued the case for a Scottish Parliament in the referendum campaign, hope that the Parliament will lean heavily on a Committee structure. We want Committees to go out and take evidence; we want pre-legislative Committees; we want Committees that will try to give substance to our avowal that the Parliament would include the people of Scotland. We said that it would be inclusive and consultative, and the Committees' powers will make an important contribution to that.

I do not agree with amendment No. 163, which was moved by the hon. Member for North Essex (Mr. Jenkin), or with the reasons that he gave for it—the idea that a two-thirds majority was necessary before the Parliament could exercise the powers to compel witnesses or seek the production of documents. Especially if power was exercised by Committees, Parliament might never get off the mark if it constantly had to put together two-thirds majorities.

If the Committees are working as we expect, the one-party concern expressed by the hon. Member for North Essex would have no basis. The Committees should work on a cross-party basis. The experience in this House, especially in Select Committees, is that, when they do so, they are far more effective than when they become narrowly partisan.

The hon. Member for North Essex said that the powers were not appropriate because they were far too draconian. He pointed to the fact that in this House people seized the opportunity to give evidence to Select Committees, and that the powers were there as a backstop. That is precisely what is proposed. I do not believe that powers of compulsion would regularly be used. The important point is that they should exist.

If we accept, for the purposes of the debate, that power is devolved, it must be expressly set down in the Bill that the Scottish Parliament has the power to compel witnesses and to compel the production of documents, or it could be challenged by anyone who did not turn up. I do not believe that, because it is written into the Bill, the powers would regularly be used.

I support amendment No. 164, although I do not interpret it in the same way as the hon. Member for North Essex. It would not necessarily exempt regulators, as he said. My hon. and learned Friend the Member for North-East Fife (Mr. Campbell) and I signed up to it because it is a probing amendment to find out what was meant by the phrase

exercises the judicial power of the State. Would the provision apply, for example, to members of a children's hearing, who exercise quasi-judicial powers? Would a judge of the European Court of Human Rights or of the International Court of Justice be covered by it? Can the Minister tell us more precisely what is meant by that phrase?

Mr. Dalyell

This is rather an important matter affecting, for instance, Judge David Edward. As he is based at The Hague, is he outside or not?

Mr. Wallace

That is extremely pertinent. Judge David Edward would be resident in Scotland and in other respects could come within the ambit of the powers. That is why it would be helpful if the Minister could specify the scope of the provision.

Amendment No. 249 provides the defence of reasonable excuse if a person fails to answer a question posed by the Parliament under the powers permitted. As there are sanctions attached, some defence should be available if there is reasonable excuse. I hope that the Minister will be minded to consider the amendment.

New clause 2 reflects the points made by the hon. Member for Perth (Ms Cunningham) with regard to the fulfilment of the Government's commitment in paragraph 2.11 of the White Paper. That is a helpful paragraph, which acknowledges that there will be reserved areas where activities are carried on that have a direct effect on Scotland.

The White Paper provided that the Scottish Parliament would be entitled to invite the submission of reports and the presentation of oral evidence by various bodies. As the hon. Lady read out the list, hon. Members could readily recognise how relevant those might be—the work of the Post Office, for example, and the Health and Safety Commission. Rail franchising has particular relevance, given the history of rail privatisation and its effect on Scotland, with the proposed withdrawal of sleepers and Motorail. The Scottish Parliament would have been keen for evidence to be given by the Office of Passenger Rail Franchising and the Office of the Rail Regulator.

In broadcasting, the merger of Grampian Television and STV recently took place. Under the terms of the franchise, Grampian has requirements in relation to local content in its news broadcasting. The Independent Television Commission is required to enforce those requirements. I am not suggesting for a moment that Grampian will not continue to fulfil them, but if there were a concern that it was falling short, it would be helpful if the ITC could give evidence to the Parliament.

8.45 pm

New clause 2 reflects the terms of the White Paper, which states: the Scottish Parliament should be able to invite the submission of reports and the presentation of oral evidence before its committees". New clause 2 does not make that a requirement, but allows the Parliament to request the attendance of a person or the production of documents in reserved areas.

The only potential sanction is that, if a person declined that request, he would be required to inform the Clerk of the Parliament in writing of the reasons for that refusal. We are not trying to impose any legal sanctions, but it is a legitimate political point to require the person to explain his refusal. It would be a matter for political debate, but it would not mean that the Parliament was trying to exert power over reserved subjects.

The rest of the new clause is modelled on clause 23. I hope that it will commend itself to the Minister. If the present wording does not do so, I hope that he will tell us whether it is covered by a provision elsewhere in the Bill, which has escaped the notice of my hon. and learned Friend, the hon. Lady and myself, or whether, at a later stage in the passage of the Bill—new clause 2 will not be voted on until much later, if it comes to a vote—the Government intend to table a clause to give substance to the valuable provisions set out in paragraph 2.11 of the White Paper.

Mr. Dalyell

I freely confess that I was one of those who supported the Government decision to take the Bill on the Floor of the House, but I hope that colleagues are beginning to realise how it came about that, in 1978–79, debates took 47 days on the Floor of the House. Contrary to general mythology, there was not much filibustering, but there were many, many problems. Time is receding, and I can only hope for injury time for important clauses.

Few things are more important than the exercise of the judicial power of the state. I shall be brief on amendments Nos. 164 and 167. Clause 23(4) provides: That power is not exercisable in relation to… a judge of any court or a member of any tribunal which exercises the judicial power of the State. I repeat the question that was put by the hon. and learned Member for Orkney and Shetland (Mr. Wallace). It is an urgent question concerning the children's hearings. Do they exercise the judicial power of the state? The point was made about Judge David Edward. What about the courts of the Church of Scotland—for example, the kirk sessions? They are courts, but appear not to be exercising state power. Perhaps the Minister could comment on that.

Amendment No. 167 provides a reasonable excuse defence in relation to a failure to answer a question posed by the Parliament under the powers permitted under clause 23. Although Parliament is being treated as a court, and solicitors will be able to claim legal professional privilege, there is in general no public interest defence that would apply to a Select Committee of the House of Commons, unless it is anticipated that public interest would be within the bounds of a reasonable excuse to refuse or fail to attend proceedings. There is, however, no reasonable excuse provision in respect of answering questions by the Parliament, and the amendment takes account of that issue.

Do the terms of clause 24(1)(b) constitute a strict liability offence? Is there no defence to a charge of failing to answer the Parliament's questions? In any case, for a defence provision, the terms are vague. Who is entitled to ask questions and demand an answer? Is it a Member of the Holyrood Parliament? Is it the Lord Advocate, the Solicitor-General or a Clerk of the Parliament? All those questions must be answered, because of the imprecise wording.

If Select Committees are to be effective, they may have to have different rules for those tight situations when witnesses have no intention of answering. I attended both sittings when Sir Leon Brittan and Sir Robert Armstrong, as he was then, appeared before the Select Committee on Trade and Industry. If the rules had been different, the House of Commons might have got a bit further on those occasions. Therefore, this is not just a theoretical question; it is a very real question about the effectiveness of a parliament.

Mr. Tim Collins (Westmorland and Lonsdale)

The hon. Member for Dundee, East (Mr. McAllion) said that clause 23(3) was too wide, but I think that it is too narrow.

Why is there no specific mention in clauses 23 or 24 of the status of ordinary Members of this United Kingdom Parliament? Are we or are we not covered by the powers that are being given to the Scottish Parliament to have people summoned before it? It may be said that this United Kingdom Parliament will, by definition, have responsibility only for reserved powers, but we all know from our postbags that we are often asked to intervene with a range of public and private bodies, national and international, which have no direct accountability to the House. I have had letters in my postbag this week asking me to intervene with the Governments of Iran, Indonesia and Tunisia.

It is hardly surprising that we must expect that Members of the United Kingdom Parliament, particularly Scottish Members of this Parliament, will be invited to opine upon, write letters to or perhaps intervene directly in affairs that are reserved under the Act for the Scottish Parliament.

Is there any prospect that Members of this Parliament could under any circumstances be summoned before the Scottish Parliament under these provisions? We have talked about Ministers of the Crown, but what about ordinary Back-Bench Members? In particular, what are the implications for parliamentary privilege? Nothing in clauses 23 or 24 specifically exempts Members of the United Kingdom Parliament from addressing matters relevant to the Scottish Parliament or says whether, if we raise matters on the Floor of the House, we might be summoned before the Scottish Parliament when we next visit Scotland. I should like a clear answer, please, to those questions.

Mr. McLeish

This has been a good debate and I shall try to answer most, if not all, of the questions that have been put.

Mr. Ancram

It will be the first time.

Mr. McLeish

I hope that the right hon. Gentleman will listen to my reply. He may enjoy the experience.

The amendments to the clauses relating to the Parliament's powers to call for witnesses and documents address the issue from a number of different standpoints. It may be helpful if I first make three points to clarify the intention of the provisions.

First, the purpose of these provisions is to give the Scottish Parliament the right to require oral and written evidence relating to devolved or executively devolved matters. That is the basic principle underlying these provisions. Those outside Scotland and Ministers and civil servants of the United Kingdom Government can be summoned only if they have responsibilities for devolved or executively devolved matters, and they can be summoned only to speak about those matters. Those are, of course, the matters for which the Scottish Parliament will be responsible. We take the view that it should not have powers of compulsion in relation to matters where it does not have responsibility.

Secondly, some of the amendments tabled suggest some confusion about the definition of a cross-border public body. I remind hon. Members that cross-border public bodies are bodies which have functions in or as regards Scotland in relation to devolved matters as well as other functions. Those other functions may relate to reserved matters in Scotland or to matters elsewhere in the United Kingdom. They are not bodies that deal with reserved matters only.

Mr. Jenkin

Will the Minister clarify what exactly is meant by the term "relating to Scotland"? For example, the Scottish Parliament has a responsibility for foreign policy because it is free to discuss foreign policy. Therefore, could it summon the Foreign Secretary to give evidence on the question of, say, foreign policy as it affects Scotland?

Mr. McLeish

I shall deal with that point in a minute. The legislative competence is at Westminster. The Foreign Secretary could be invited, but not summoned.

Thirdly, those who are responsible only for reserved matters cannot be summoned in connection with those matters. They can, however, be invited to attend and to submit documents in relation to reserved matters. There is nothing in the Bill to prevent the Scottish Parliament from inviting evidence about anything from anyone, and that is as it should be. I hope that that captures some of the concerns expressed by hon. Members in relation to matters in which the Parliament might be involved.

Mr. Canavan

I accept that people can be invited rather than summoned, but some people might want to refuse the invitation. If someone in England or Wales had been trying to bribe a Member of the Scottish Parliament, the appropriate Committee of the Scottish Parliament might want to summon that person to give evidence before it. If he refused to come, we would have no powers to force him to do so.

Mr. McLeish

There is a distinction, on which I shall expand, between the devolved matter and the reserved matter. It is important to establish that as a principle. We are keen to have a common-sense, balanced view of the Parliament's responsibilities in devolved matters. The central principle is the distinction between reserved and devolved matters. My hon. Friend will see that as I develop my contribution.

Mr. Wallace

The Minister is seeking to answer the point about calling witnesses over matters that are reserved powers, but which have an impact in Scotland. Does he agree that there is nothing in the legislation to make it clear that Parliament can do that by the very nature of it being a request? Might not it be helpful if the existence of that power were put beyond doubt? It would be helpful if it were in the Bill.

Mr. McLeish

We take the opposite view. Many matters raised in debate could be put into the Bill. Parliament can invite anyone to contribute on anything to the Parliament. On that basis, it is assumed that that will happen. We see no particular need to write that into the Bill.

Ms Roseanna Cunningham

I am interested in what the Minister says, and I am glad to hear it in so far as it goes because, as I understand it, the Minister is saying that anyone can invite anyone, and explicit permission is not needed to do so. The issue concerns not so much the invitation, as the response to the invitation. Would the Scottish Parliament prefer to invite or compel the Director-General of the BBC to explain his decision on "Panorama"?

Mr. McLeish

There clearly cannot be an element of compulsion to what is merely an invitation. If a person who is part of an organisation does not respond to an invitation, clearly the Parliament cannot discipline that person. The BBC is not regarded as a cross-border public body because, in terms of the regulatory framework, legislative competence is based at Westminster.

Mr. Salmond

Anybody can invite anybody to do anything. Any hon. Member has the power of invitation. The Minister is right to say that it does not need to be written into legislation, but if the Scottish Parliament has competence—if the Minister wants to stay faithful to the White Paper, he must recognise that the question from my hon. Friend the Member for Perth (Ms Cunningham) is perfectly apposite—it should be able to compel an organisation such as the BBC, with interests in Scotland, as mentioned in the White Paper, to give evidence in so far as those interests affect the Scottish people and what the Parliament will be discussing.

Mr. McLeish

That is simply not what should happen. We seem to be stuck on a point about inviting anyone on anything. That power will be available to the Parliament, but that is not the important issue behind clause 23. If I could make some progress, I could start to address some of the issues that were raised.

The power to require evidence should relate directly to the Parliament's responsibilities and to those who are accountable to it for exercising them. That seems straightforward and there is an element of common sense in that. Those who are not formally accountable to the Parliament, however, will be able to attend and give evidence, assuming that they are willing to do so.

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I should like to consider the Government amendments to clauses 23 and 24, and to schedule 4. These are in line with the principles that I have just noted. I shall then respond to the amendments proposed by other right hon. and hon. Members.

Amendments Nos. 223, 224 and 225 will clarify the matters in relation to which the Scottish Parliament can exercise its power of summons, and in particular the circumstances in which Ministers of the United Kingdom Government and their civil servants may be summoned.

Amendment No. 224 is the main amendment of the group. Its purpose is to amend clause 23(3). It was not intended that the clause should enable the Parliament to summon United Kingdom Ministers and their civil servants unless they, rather than the Scottish Executive, were responsible for functions concerning devolved matters. As the clause stands, however, it would enable the Parliament to compel the attendance of Ministers of the Crown, and United Kingdom civil servants, where they were exercising functions that they were permitted to exercise concurrently with the Scottish Ministers—for example, the Secretary of State for Trade and Industry is permitted under clause 52(f) of the Bill to continue to provide financial assistance to industry in Scotland, such as by giving grants to particular industry sectors.

To subject United Kingdom Ministers and civil servants to the Scottish Parliament's power of summons in such cases constitutes a form of double accountability. Ministers of the Crown and United Kingdom civil servants exercising these functions will use resources voted by the United Kingdom Parliament and should be accountable to it and not to the Scottish Parliament. The Scottish Parliament will, however, be able to—I use the phrase again—invite them to attend.

The amendment also clarifies a related point by providing that United Kingdom Ministers and their civil servants cannot be summoned before the Scottish Parliament just because it is provided in, say, an executive devolution order under clause 59 that the Scottish Ministers must be consulted or their agreement sought about the exercise of a function by a United Kingdom Minister that concerns a reserved matter.

Mr. Salmond

Let us take as an example the concordat that the Minister and his hon. Friends are seeking to arrange between the Scottish Office, Locate in Scotland and the Department of Trade and Industry. If the Scottish Parliament wanted to examine the concordat to see whether it met its requirements, it would certainly want to summon its own Ministers, but would it not also want to summon the other half of the bargain—Department of Trade and Industry Ministers? Why is that summons not allowed on the face of the Bill?

Mr. McLeish

Returning to first principles, the concordats will be concluded between Scottish and Westminster Ministers. I just explained that one of those groups will be covered. The fundamental point is that there will be an opportunity for the Scottish Parliament to invite hon. Members of the Westminster Parliament to participate in the Scottish Parliament if they want to accept the invitation. There is no summoning. It is clear that, in terms of the split between devolved and reserved powers, double accountability should not exist.

Mr. Swinney

May I put another scenario to the Minister, where a one-way street might be difficult? The hon. Member for Dundee, East (Mr. McAllion) mentioned revising the Parliament's funding mechanism. If, in the circumstances, this House were to proceed with a review of the need for public expenditure, as the Treasury Select Committee suggested the House might wish to do in the future, the Westminster Parliament would be able to compel Scottish Members to make representations, but the Scottish Parliament would not be able to compel Westminster Ministers to take account of the fact that there were imbalances in spending in the rest of the United Kingdom, but not in Scotland. That would be totally unfair.

Mr. McLeish

The Government are not trying to conceal anything—we have been open. The point is obvious in terms of devolved and reserved powers, and invitations and summonses. I cannot be clearer in response to the point made by the hon. Member for Perth (Ms Cunningham) a few minutes ago.

Government amendment No. 225 seeks to amend subsection (4) to make it clear that the power to summon does not apply to a person in connection with discharging functions of a body that is concerned only with reserved matters. It takes account of the fact that someone might have two sets of responsibilities—one reserved and one devolved—or that the Parliament might want to call someone living in Scotland in connection with a devolved matter.

Mr. McAllion

I accept the distinction that my hon. Friend has drawn between reserved and devolved powers. He will remember, however, that the Labour party, under the Scottish Constitutional Convention, gave a commitment to a joint review of the Barnett-Goschen formula between the Scottish and Westminster Parliaments. It seems to be a serious watering down of that commitment to say that the Scottish Parliament should not have the power to summon Treasury Ministers so that they can take part, on an equal basis with the Westminster Parliament, in the joint review of the Barnett-Goschen formula.

Mr. McLeish

I do not want to get involved in a substantive discussion about the Barnett formula. The matter is simply not on the agenda, politically or in terms of the Bill. Where reserved matters are being discussing at Westminster, the Scottish Parliament will have the right to invite, not to summon. It is as clear-cut as that.

Mr. Swinney

The Minister is distinguishing between devolved and reserved powers. If the distinction is so clear, why do we have so many concordats to cover the grey areas, which seem to be the matters on which the Scottish Parliament should have the right to question UK Ministers and to compel them to answer?

Mr. McLeish

I am not aware that the matters that we are discussing are littered with concordats. I do not want to go over the points that hon. Members have raised.

The purpose of Government amendments Nos. 226 to 228 is to remove any doubt about when procurators fiscal may decline, in proceedings of the Scottish Parliament, to answer questions or produce documents relating to particular criminal cases.

Clause 26(3) enables the Lord Advocate or the Solicitor-General for Scotland to decline to answer questions or produce documents relating to the operation of the criminal prosecution system in a particular case if he considers that answering the question or producing the document might prejudice criminal proceedings in that case, or that it would otherwise be contrary to the public interest. In proceedings in this House, the Law Officers may also decline to answer questions on similar grounds.

The problem that we have encountered is whether that provision would entitle a procurator fiscal to decline to answer on the same grounds. In solemn proceedings, a procurator fiscal acts on behalf of, and in the name of, the Lord Advocate and would be entitled, under clause 26, to refuse to answer questions about any prosecution decisions on the basis that the Lord Advocate had instructed him not to answer. It would then be for the Parliament to decide whether to summon the Lord Advocate to pursue the matter.

However, there is room for doubt about whether a procurator fiscal would be so protected in respect of other proceedings, such as summary proceedings or petition procedure, where complaints run in the name of the procurator fiscal and prosecution decisions are taken by the procurator fiscal rather than in the name of, or by, the Lord Advocate. The amendments remove the scope for doubt.

Government amendment No. 226 adds subsection (9) to clause 23, to provide that a procurator fiscal in proceedings of the Scottish Parliament may decline to answer any question or produce any document relating to the operation of the criminal prosecution system in a particular case where the Lord Advocate considers that prejudice might be caused in that case, or that to do so would otherwise be contrary to the public interest, and has authorised him to decline to do so. If the Parliament is not satisfied, it can, of course, call the Lord Advocate to appear before it.

Amendment No. 43, tabled by my hon. Friend the Member for Falkirk, West (Mr. Canavan), would extend the Parliament's power to call for witnesses and documents in relation to devolved matters to include UK Ministers, and public servants and persons generally outside Scotland. In the Government's view that would go too far.

Under the clause as it stands, United Kingdom Ministers and civil servants may be required to give evidence if they have responsibilities relating to devolved matters concerning Scotland, or executively devolved matters. The same applies to anyone else outside Scotland who has such responsibilities. My hon. Friend's amendment would enable the Parliament to summon anyone, wherever they lived in the United Kingdom, irrespective of whether or not they had responsibilities relating to devolved matters. I hope that my hon. Friend will agree that the clause strikes the right balance, and I ask him not to press his amendment.

Amendments Nos. 163 and 165 would require the Parliament, and its Committees, to vote by a two-thirds majority before exercising the power of summons. In our view, the way in which the Parliament reaches a decision to use the power should be a matter for the Parliament itself. It is not appropriate for the Bill to impose such a requirement.

The Government cannot accept amendments Nos. 161 and 162. The right hon. Member for Devizes (Mr. Ancram) does not want the Scottish Parliament to be able to call Ministers of the Crown to give evidence to the Scottish Parliament in any circumstances. That would not be right. The Scottish Parliament should be able to call for evidence from Ministers of the Crown who discharge functions in relation to fully or executively devolved matters in Scotland. Such a situation may arise if a United Kingdom Minister continues to discharge functions relating to a public body in Scotland that is concerned with devolved as well as reserved matters, and which has been listed under an order under clause 83. We shall obviously deal with that procedure later. On that basis, I would ask the right hon. Gentleman not to press those amendments.

Amendment No. 164 seeks to delete the reference in clause 23(4) to the exercise of the judicial power of the state. The phrase is self-explanatory: it refers to those courts and tribunals whose functions are judicial in character. There are bodies called tribunals that do not exercise the judicial power of the state—a phrase previously used in legislation—and they ought not to be excluded from the Parliament's power to summon persons to give evidence. Given that clarification, I would ask the right hon. Gentleman not to press his amendment.

Mr. Wallace

Will the Minister clarify the position of children's hearings? Are they covered by this clause?

Mr. McLeish

My judgment is that they are not covered by this subsection, but I shall write to the hon. Gentleman on that point.

Mr. Dalyell

Is a judge of the European Court of Justice, the European Court of Human Rights or the International Court of Justice a judge of a court that exercises the judicial power of the state? My hon. Friend may want to say something about the Church of Scotland courts.

Mr. McLeish

On my hon. Friend's first point, I think that such a judge would be excluded. I shall extend him the courtesy of sending him details on that point, and on the other matter of the Church of Scotland.

Mr. Jenkin

Will the Minister send a copy to the Opposition?

Mr. McLeish

Of course, as a courtesy, the letters will be copied to the Opposition.

The Opposition raised the issue of the judicial power of the state, but the phrase is self-explanatory. However, I have agreed to provide letters of clarification on outstanding points, which I hope will deal with the matter.

Amendment No. 166 would add to subsection (8) a reference to a court in that part of the United Kingdom in which the person lives or works. At present, the clause affords a person who is required to give evidence or produce documents the same opportunity to refuse to answer a question or to produce a document as he would have if he were in court in Scotland. Given that the legal system in Scotland differs from that in other parts of the UK, not surprisingly the privileges recognised there are not identical to those recognised in Scottish courts. We do not consider that it would be either helpful or appropriate for the Scottish Parliament in its proceedings to attempt to recognise rights and privileges available in courts in other parts of the United Kingdom.

Amendments Nos. 167 and 249 would amend the provision that makes it an offence for a person not to answer a question put to him when he is attending proceedings of the Parliament. Although clause 24 provides that it is an offence to refuse to answer a question, a person is not obliged to answer questions unless they are about devolved or executively devolved matters.

Mr. Salmond

We discussed the matter of the concordat being examined by Committees in the Scottish and Westminster Parliaments. The Scottish Parliament will be allowed to summon its Trade and Industry Minister, but, under existing powers, the Select Committee on Trade and Industry in the Westminster Parliament will be able to summon both United Kingdom Department of Trade and Industry Ministers and the Scottish Minister. That is not fair, and it is a weakening of what was understood to be the commitment. I recommend that the Minister thinks again.

Mr. McLeish

It is not a weakening of the commitment in relation to anything that we have said, including what was said in the White Paper. This brings us back to the central point that I have made in answering hon. Members' questions about matters reserved and matters devolved. When a concordat has been reached between Ministers at Holyrood and Ministers at Westminster, it should be about co-operation, and it will be about dialogue. Let me make it clear, however, that the Minister involved in the Westminster Parliament can be invited, but cannot be summoned.

Mr. Swinney

The Minister talks of the advantage of basing concordats on dialogue and discussion, but how can there be a discussion if someone refuses to turn up?

Mr. McLeish

It is a question of first principles. I am in danger of repeating myself a great deal, but it is no great secret that, in relation to the concordat and the dialogue, the Scottish Executive—the Minister—will be accountable and responsible to the Scottish Parliament. At Westminster, the Minister involved in the discussions will be responsible to Westminster—and, of course, to Scottish Members of Parliament at Westminster who are participating in the continuing work of the House of Commons.

9.15 pm

Mr. Dalyell

May I ask a rather important question about amendment No.167? Do the terms of clause 24(1)(b) constitute—

The First Deputy Chairman

Order. I am worried about the hon. Gentleman's interventions. He seems to be reading items on to the record, which is not in the spirit of interventions. Interventions are supposed to relate to matters that a Minister has raised.

Mr. Dalyell

I have been asking very precise questions relating to the amendment. I was going to ask whether there was no defence to a charge of failing to answer the Parliament's questions. Moreover, I am told that the question of who is entitled to make demands for an answer is of some legal importance. Will that person be a Member of the Scottish Parliament, the Clerk of the Parliament, a Minister in the Parliament or someone else?

Mr. McLeish

I am about to come to that.

Under clause 23, the notice requiring a person to attend must set out the matters relating to which he is required to give evidence. A witness is not guilty of an offence if he refuses to answer a question about something else. Clause 23 also says that a person is not obliged to answer a question that he would be entitled to refuse to answer in a court in Scotland—for example, if he might incriminate himself. I trust that, following that explanation, hon. Members will agree that the only reasonable excuses or causes that a person might have for not answering a question are already covered, and that the amendments are therefore unnecessary.

As for amendment No.168, under the provisions of the Oaths Act 1978, a person who objects to being sworn in has the right to make a solemn affirmation rather than take an oath. Accordingly, no express provision is required in the Bill. In the light of those explanations, I invite those concerned not to press amendments Nos.161 to 168 and amendment No. 249.

I think that amendments Nos.102 to 104 should also be rejected. I doubt whether, as drafted, they will achieve what those who tabled them wish—to empower the Parliament to compel Ministers of the Crown and representatives from "reserved matters" bodies, such as broadcasters, to give evidence about reserved matters. It would be wrong for the Parliament to have such a power.

Clause 23(1) and clause 23 (2) specify the matters in relation to which the Parliament should be able to compel the attendance of witnesses and the production of documents. Those matters can be summarised as fully or executively devolved matters. They are the matters for which the Parliament and the Scottish Executive will be responsible. As I said, the Parliament should not have powers of compulsion in relation to matters over which it has no responsibility.

Even if the amendments were acceptable—which they are not—such persons would still be caught by the conditions in subsections (1) and (2) that any person can be compelled to give evidence and produce documents only about fully or executively devolved matters. I should stress that the fact that a function in a reserved area is relevant to a devolved function does not mean that it relates to it in terms of the Bill. I therefore hope that those amendments will not be pressed.

New clause 2 would confer an express power on the Scottish Parliament to request the attendance of witnesses and submission of documents on reserved matters as they affect Scotland. I tell the hon. and learned Member for Orkney and Shetland (Mr. Wallace), in the spirit of his speech, that such a provision is not necessary. There is nothing in the Bill to prevent the Scottish Parliament from inviting evidence about anything from anyone. I am repeating a point that I made earlier, but it is worth restating.

New clause 2 would limit the Parliament's powers by erecting a requirement that the evidence or documents requested should be on matters affecting Scotland. I envisage circumstances in which the Scottish Parliament would want to debate or investigate events overseas that, although of interest and concern in Scotland, could not be said to affect it. I hope that the hon. and learned Member for Orkney and Shetland will agree that the new clause is unnecessary and that its precise wording is undesirable. I ask him not to press it.

Mr. Jenkin

We have had a most interesting and useful debate, which has clarified the issues surrounding clause 23. I listened carefully to what the Minister said about the amendments tabled by Conservative Members and, because of his explanation of the clause and the Government's amendments to it, we shall not press any of our amendments.

I particularly welcome the tighter restrictions that amendment No. 224 will impose in the clause, thereby neatly avoiding what the Minister called the "problem of double accountability", which was the main concern of our amendments. I believe that he has responsibly addressed the issue. He is, of course, aware that the Scottish National party and others are looking for a row on the issue. Specifically, there are those who will deliberately misunderstand the nature and scope of concordats, how they will be negotiated and what they mean. I assure him that he will have our support in ensuring that those matters are dealt with responsibly.

The Minister made it clear that United Kingdom Ministers can be summoned only on issues for which the Scottish Parliament is responsible. It can invite evidence from anyone, but it cannot compel the Foreign Secretary to give evidence on foreign affairs. From what the Minister was saying, I do not believe that the Parliament could compel the Chancellor of the Exchequer to give evidence on the Barnett formula or on arrangements that the UK Parliament was making—he seemed to confirm that—to determine Scotland's need and Scotland's block grant. He confirmed that the Scottish Parliament would not be able to summon people from the BBC about a programme broadcast in Scotland.

We regard those assurances as properly consistent with Ministers' comments in the White Paper. Those matters should be held to account on behalf of the people of the United Kingdom, and are therefore properly the responsibility of the United Kingdom Parliament. It seems absurd for someone now to say that democracy is somehow being denied because those matters will not be dancing to the tune of what we hope will be a minority in the Scottish Parliament.

I listened carefully to the speeches in the debate. The Secretary of State dealt well with the intervention of the hon. Member for Perth (Ms Cunningham).

I tell the hon. Member for Dundee, East (Mr. McAllion) that those who supported devolution on the basis of this Parliament not being sovereign are destined to be disappointed. Both today's debate and yesterday's debate have been clear on that point. If the relationship between the Westminster Parliament and the Scottish Parliament goes wrong, Conservative Members will be the last to blame. We warned that exactly that type of misunderstanding would lead to the possibility of a breakdown in the relationship.

The hon. Member for Dundee, East had an opportunity to vote for the status quo—so that Scotland's influence was maximised in the House, and so that the favourable number of Scottish Members could negotiate on the favourable funding formula that he now wants to protect—using the full powers of the Secretary of State and the full complement of Scottish Members.

In the light of the decision taken by the Scottish people, it is to the Government's credit that they are dealing with those matters rationally and responsibly. Where appropriate, we shall give them support. We welcome Government amendment No. 224.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 223, in page 11, line 14, at beginning insert 'other'.

No. 224, in page 11, line 16, leave out subsection (3) and insert— (3) The power in subsection (1) is exercisable in relation to a person outside Scotland only in connection with the discharge by him of functions relating to matters within subsection (2). (3A) That power is exercisable in relation to—

1. (a) a Minister of the Crown, or
2. (b) a person in Crown employment, within the meaning of section 191(3) of the Employment Rights Act 1996, other than a person mentioned in section 47(2) of this Act,

only in connection with the discharge by him of functions relating to matters within subsection (2) which are not functions mentioned in subsection (3B).

(3B) Those functions are—

1. (a) functions exercisable in or as regards Scotland by a Minister of the Crown as well as by the Scottish Ministers, and
2. (b) in relation to matters within subsection (2)(b), functions exercisable by a Minister of the Crown with the agreement of, or after consultation with, the Scottish Ministers.'.

No. 225, in page 11, line 24, after 'matters', insert 'in connection with the discharge by him of those functions'.

No. 226, in page 12, line 3, at end insert— '(9) A procurator fiscal is not obliged under this section to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case if the Lord Advocate—

1. (a) considers that answering the question or producing the document might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest, and
2. (b) has authorised the procurator fiscal to decline to answer the question or produce the document on that ground.'.—[Mr. McFall.]

Clause 23, as amended, ordered to stand part of the Bill.