STANDING ORDERS—FURTHER PROVISION (Hansard, 29 January 1998)

§ Mr. McLeish
I beg to move amendment No. 219, in schedule 3, page 57, line 17, after 'for', insert "(a)'.

§ The Chairman of Ways and Means (Sir Alan Haselhurst)
With this, it will be convenient to discuss the following amendments: Government amendments Nos. 220 and 221.
No. 34, in page 57, line 45, leave out 'Cornwall' and insert Rothesay'.

§ Mr. McLeish
The purpose of amendments Nos. 219 and 220 is to make it quite clear that the Scottish Parliament will be required to make provision in its Standing Orders for a sub judice rule.
Paragraph 1(1) of schedule 3 already requires the Parliament to include in its Standing Orders provision for preserving order in the proceedings of the Parliament, including provision for preventing conduct that would constitute a criminal offence or contempt of court.
555 In reviewing this schedule, the Government have concluded that it does not impose a sufficiently clear requirement on the Scottish Parliament to make provision for a sub judice rule. Without such a rule, the Presiding Officer could be left in considerable doubt as to whether to make a determination to the effect that discussion would be likely to constitute a contempt of court and should therefore be prevented. Discussion may be justified on the grounds that it is incidental to a discussion in good faith of public affairs, and that would make it difficult for the presiding officer to act unless he or she had all the details and circumstances of the particular case. For that reason, there is a serious risk that discussion would take place and that criminal proceedings would be prejudiced before the presiding officer was able to make his or her decision.
The Government are conscious that the solution to this problem must balance three factors: first, the legitimate discretion of the Parliament over the creation of its own Standing Orders; secondly, the importance of preventing public discussion of matters that would result in prejudicing court proceedings, thus damaging the workability of the judicial system in Scotland; and, thirdly, the need to maintain the right to freedom of speech in line with rights under the European convention on human rights.
We have concluded that the best way in which to deal with this point is to require the Scottish Parliament to establish Standing Orders relating to sub judice, but to leave those Standing Orders to be developed in line with those three considerations. Account will, no doubt, be taken of the sub judice resolution that applies to proceedings of the House of Commons.
Amendments Nos. 219 and 220 simply insert a requirement into paragraph 1(1) of schedule 3 that the Scottish Parliament must make provision in its Standing Orders for a sub judice rule. It will be left to the Parliament to determine the details of that rule. A responsible Parliament must make provision to ensure that proper discussion of public affairs does not prejudice court proceedings. The amendments will ensure that the Scottish Parliament has to make appropriate provision.
Amendment No. 221 will allow the Standing Orders to make provision for the withholding of rights and privileges, including salary and allowances, from any Member of the Scottish Parliament in respect of any period during which he or she is excluded under Standing Orders relating to the preservation of order.

§ Mrs. Ray Michie
I want to speak to my amendment No. 34, which would alter the clause so that it refers to the Duke of Rothesay instead of to the Duke of Cornwall in the paragraph referring to Crown interests and the requirement of royal consent for a Bill. One of Prince Charles's titles is that of Duke of Rothesay, and it would be more appropriate for that Scottish title to be used instead of the title Duke of Cornwall. It would be a gesture of some sensitivity, as Rothesay will this year celebrate the fact that 600 years ago, in 1498, King Robert III conferred the title on his eldest son, David, and it has been borne by the sovereign's eldest son ever since. It would be a tribute to the town of Rothesay, which in 2001 celebrates 600 years as a royal burgh.
The title of Duke of Rothesay would also be a fitting tribute to the Prince of Wales. It is entirely appropriate that a Bill that re-establishes the Scottish Parliament 556 should refer to the heir to the throne as the Duke of Rothesay. I do not know whether the Minister will accept the amendment, but it is only small, and he has not accepted any amendments so far. He may say that he cannot accept it because of the archaic rules on titles, lines of succession, and heirs and successors, about which I know little and understand even less. Rules can be altered, however, particularly archaic rules. I ask him to seek an audience with the Queen.

§ Mr. McLeish
And with the Keeper of the Seal.

§ Mrs. Michie
Indeed. The Minister should ask the Queen whether it is in her power to change the rules. It would not lead to the end of the House of Windsor or to the demise of the Scottish Office and all its Ministers, no matter how close they will be to Holyrood house.
I ask the Minister to give the amendment serious consideration. It would be better if the Bill referred to Prince Charles as the Duke of Rothesay. The town of Rothesay would be delighted if the Minister accepted the amendment.

§ Mr. McAllion
Will the Minister explain why there has to be any reference to the Duke of Cornwall, to the Duke of Rothesay or to Her Majesty the Queen? Why should the strengthening of democracy represented by the establishment of a Scottish Parliament be watered down by making Bills passed by that democratic Parliament subject to the assent of people who are unelected?

§ Mr. Dalyell
I think it pretty churlish of the hon. Member for Argyll and Bute (Mrs. Michie) not to mention all those famous conferences of the Scottish Labour party that have taken place at Rothesay. Those of us who have braved the boat back in choppy waters feel quite strongly—[Interruption.] I do not know what my right hon. Friend the Secretary of State just said sotto voce, but I think he remembers one of those occasions.
What prompted the Government to table amendment No. 221? I am not saying that the drafting was bad or defective, but I should like to know whether there was a reason for the afterthought. It is not an unimportant amendment.

§ Mr. Salmond
I associate myself with what was said by the hon. Member for Linlithgow (Mr. Dalyell). I think that both of us have been victims in the sense of having our rights and privileges withdrawn.
I am sure that the Scottish Parliament will appreciate that, if a Member's rights and privileges must be withdrawn—which they may well have to be—the matter must come before the whole Parliament rather than being disposed of by Whips, Committees or anything of that nature.
Amendment No. 220 refers to a sub judice rule. I know that amendment No. 221 deals with the question of rights and privileges, but I should like to hear from the Minister that the Parliament will have the right to be protected from defamation actions. That is an essential prerequisite for any Parliament.
The hon. Member for Linlithgow spoke of braving the waters. I am certain that he knows the exact latitude and longitude and the direction of the boat, as he knows all about naval vessels at sea. The Scottish National party is 557 the party that most recently held an annual conference at Rothesay, and a tremendous place it was, too—and a tremendous conference.
Just over a year ago, we attended a ceremony marking the return of the Stone of Destiny. Numerous people of whom I had never heard were higher in the order of precedence than the Secretary of State for Scotland—or, for that matter, the Scottish First Minister-to-be—and certainly higher than any lowly Member of Parliament. There was for instance, the Gold Stick for Scotland, who I had always thought was the snooker player Mr. Hendry.

§ Mr. Dalyell
The Gold Stick in Waiting.

§ Mr. Salmond
The Gold Stick in Waiting as well. I learn something every day.
I wish that the hon. Member for Argyll and Bute (Mrs. Michie) had drafted her amendment No. 34 more widely, to establish whether the Scottish Parliament could dispose of some of these unnecessary titles of which no one has heard, and which should not clutter up the scene in case anyone mistakes their holders for people who have been elected or have a democratic mandate, or a right to carry a gold stick or anything else.
As for the Government amendments, I hope that the Minister can reassure us that he will not be sending all the bad boys and girls away for two weeks without due process, and that Parliament will be protected from defamation actions, as any genuinely inquisitorial Parliament must be.

§ Mr. Canavan
Will the Minister explain why schedule 3(5) is needed? Why would some Bills require the consent of Her Majesty, the Prince and Steward of Scotland or the Duke of Cornwall—who, I have now learnt, is also the Duke of Rothesay? I know who Her Majesty is, but who on earth is the Prince and Steward of Scotland? When did the people of Scotland ever elect any prince or steward for Scotland, and why does that person's consent have to be sought before a Scottish Bill becomes the law of the land?

§ Mr. McLeish
I can tell the hon. Member for Banff and Buchan (Mr. Salmond) that the MSPs will be covered in regard to defamation. I believe that we shall be having further discussions about privilege at a later stage.
Let me reply to the points made by my hon. Friend the Member for Linlithgow (Mr. Dalyell) about amendment No. 221. Clause 76 requires the Parliament to make provision for the payment of salaries to members of the Parliament", but it does not expressly make provision for the withdrawal of any salary when a Member is excluded. In view of the powers that the Parliament has to make provision in the Standing Orders for excluding a Member, under schedule 3(1), it is considered that those powers should be supplemented by a general power providing that such a Member should lose his rights and privileges, including his salary. That reinforces the nature of exclusion as a punishment and a deterrent, and is similar to the powers relating to Members of this Parliament. Let me tell the hon. Member for Banff and Buchan, as a 558 postscript, that it will be a matter for the Parliament; nothing will be done behind closed doors to the disadvantage of natural justice.
The speech of my hon. Friend the Member for Falkirk, West (Mr. Canavan) complemented that of the hon. Member for Argyll and Bute (Mrs. Michie), who made such a compelling case that it troubles me greatly to have to disappoint her. Of course we all celebrate the 500th anniversary of the first application of the title Duke of Rothesay to the sovereign's eldest son, but I am afraid that that is not a satisfactory basis on which to accept her amendment.
The provision in schedule 3(5) places Bills of the Scottish Parliament in the same position as Bills of the Westminster Parliament in terms of their requirement to obtain the consent of Her Majesty, the Prince and Steward of Scotland or the Duke of Cornwall when a provision in a Bill impacts on certain Crown interests. There is no duty in Westminster to obtain the consent of the Duke of Rothesay, and I therefore cannot accept the amendment, which would place an unnecessary duty on the Scottish Parliament. To delete the reference to Cornwall would remove that duty to obtain consent, and would subject Bills of a Scottish Parliament to different arrangements in respect of Crown interests from those pertaining at Westminster.

§ Mr. Wallace
What interests, if any, has the Duke of Cornwall in Scotland?

§ Mr. McLeish
The point is being made in relation to what exists, but also in relation to what could happen in the future.

§ Mr. Grieve
Could we not just refer to "the Duke of Cornwall and Rothesay"? I think that the hon. Member for Argyll and Bute (Mrs. Michie) had a point. I also appreciate the need to stay on a par with procedure in this Parliament, but I wondered whether the Minister would consider my suggestion, which would reflect the status of the heir to the throne in Scotland.

§ Mr. McLeish
rose—

§ The Chairman
Order. I understood that the Minister was still making his speech, and had given way. Is that correct?

§ Mr. McLeish
I had finished my speech, Sir Alan.
A serious point is involved here. We are trying to achieve consistency in the submission of Bills. Of course we are talking about a similar person, but, ultimately, I do not think that it is for us to depart from the present arrangements, although there may be good historical and other reasons, which other hon. Members have advanced.

§ Mr. Alasdair Morgan (Galloway and Upper Nithsdale)
rose—

§ The Chairman
Order. The Minister has just sat down; is the hon. Gentleman trying to catch my eye?

§ Mr. Morgan
Yes, Sir Alan.
Instead of making an intervention, I shall make a very short speech.
559 It strikes me that, as the Duke of Rothesay is the Duke of Cornwall, it really does not matter which title is in the Bill, and I therefore do not understand why the Government are unhappy about using the words "Duke of Rothesay". Do they fear that at some future stage the two titles may separate, and not be held by the same person? That is an interesting diversion on which we could speculate, but I do not think it likely. As the Duke of Rothesay is the Duke of Cornwall, what on earth is wrong with using that title in the Bill?

§ Mr. Canavan
The situation is becoming more confusing as the debate continues. Since my earlier speech, I have been informed, albeit informally, that the Prince and Steward of Scotland is also the Prince of Wales, and the Duke of Cornwall, and the Duke of Rothesay. Why on earth should he get two mentions when even his mum gets only one—and now it is suggested that he should have three mentions?

§ Mr. Ancram
There is obviously some concern. The Minister is not known for being particularly flexible on occasions such as this, but on this occasion, will he take the proposal away and look at it?

§ Mr. McLeish
Some interesting comments have been made, but we are not inclined to accept amendment No. 34.

§ Mr. Salmond
The Minister is being rather inflexible. Several points have been made in the debate, and the Bill still has a few stages to go. Without giving a commitment, perhaps he and his officials will examine the matter. It does seem that there is rather a surfeit of titles for the Duke of Cornwall, and perhaps a slimming down or the addition of "Rothesay" will satisfy the concerned hon. Members. Perhaps the Minister will re-examine particularly the point made by the hon. Member for Argyll and Bute (Mrs. Michie).

§ Dr. Liam Fox (Woodspring)
I fully appreciate the position that the Minister now finds himself in—he probably does not have a contingency note for the constitutional crisis now engulfing him. However, I believe that it is unnecessarily brittle to reject out of hand the comments of the hon. Member for Argyll and Bute (Mrs. Michie). To make matters easy for him—and if the hon. Lady does not press her amendment—the official Opposition will attempt to reintroduce it in the other place, to give the Government time to think about it.

§ Mrs. Ewing
I beg to move amendment No. 74, in page 57, line 40, at end insert— '(4) The standing orders shall include provision to allow members of the European Parliament to sit on any committee or sub—committee charged with the scrutiny of European Commission documents or European legislation.'. 560 The amendment is simple. I tell hon. Members who are interested in the European issue that there will be opportunities later in the Bill's passage to examine the complexities of the relationship between European institutions and the proposed Scottish Parliament, and that perhaps they should not try to fire all their ammunition now.
In moving the amendment, I am trying to discover what Ministers believe should be the link between Members of the European Parliament and Members of the Scottish Parliament. I am not saying in the amendment that MEPs should sit on Committees and have automatic voting rights, merely that they should be enabled to be in the Scottish Parliament and to assist any Committee that will be established to scrutinise European legislation. If the principle of involvement were conceded, I am sure that the Scottish Parliament could itself examine how such Committees might evolve.
I have studied other Parliaments and how their Members link in with Members of the European Parliament. I am specifically dealing with scrutiny committees—not policy committees—examining proposals from the Commission.
In Belgium, for example, the scrutiny committee consists of 10 MEPs and 10 MPs. In Denmark, MEPs can attend the scrutiny committee if they have a dual mandate. In Germany, in the Bundestag, 50 MPs are involved in scrutiny, 39 of whom are directly elected to the Bundestag and 11 of whom are MEPs. There is provision in the Bundesrat, composed of members from the various Lander, to allow MEPs to sit on scrutiny committees. In Greece, 31 members scrutinise European legislation, including 10 MEPs. Spain has provided for joint meetings.
In France, MEPs are invited to give evidence on technical measures. In Ireland and Italy, there is provision for MEPs attend such meetings. In Luxembourg, MEPs attend in an advisory capacity. There are regular meetings with MEPs in the Netherlands. Austria has no formal arrangements. Finland's MEPs are heard as experts. Portugal provides for regular meetings. In the United Kingdom, there are no formal arrangements and no direct links.
I accept that scrutiny committees work in different ways in different countries. As we establish the Scottish Parliament, we should consider how important Europe is to the electorate of Scotland, because many issues are now dealt with in European legislation.
With other hon. Members, I serve on the Select Committee on European Legislation. In one year, our Committee scrutinised 1,356 documents. Of those, 50 were recommended for debate—12 on the Floor of the House, and 38 in Standing Committees. That substantial amount of legislation—the gamut of European legislation—has an impact on the Scottish economy, on Scottish society and on the Scottish environment.
I should like us to consider the possibility of the Scottish Parliament immediately opening its doors to the expertise and knowledge of those who work within the European Parliament, enabling us to examine the impact of European proposals on our country of Scotland. That would be logical.
For a long time, MEPs have not had freedom of access or easy access in the House to telephones, for example, or to fax machines or to Brussels. It was a long and 561 hard-fought campaign. Hon. Members are now eligible for one trip per year on Commission business to either Brussels or Strasbourg. There is an opportunity for the Scottish Parliament to say, "Let's examine how other Parliaments in the European Union operate, and consider some of their ideas."
The amendment will not tie us into granting any rigorous rights or means of domination. It will merely open doors to ensure that those who are elected—only a month after the Scottish Parliament elections—by our electorate in Scotland are given the right to come to our Parliament and to be involved in discussions affecting us. That is the amendment's underpinning ethos.
The European Parliament is the most democratic of all European institutions. MEPs are not appointed or delegated—they are elected by the people. In a newly elected Scottish Parliament, we should involve those who are directly elected. The expertise that MEPs could bring to our scrutiny would be to the benefit of us all.

§ Mr. Dalyell
Having been a member of the Scrutiny Committee under the chairmanship of that clever man Julius Silverman, I find myself extremely sympathetic to the aims of the amendment moved by the hon. Member for Moray (Mrs. Ewing). Incidentally, gently and without malice, I think that she may have scored a little bit of parliamentary history or a parliamentary first. I doubt whether—in the whole history of this Parliament's 700 years or whatever it is—anyone has ever before proposed a "co-opt my mother-in-law" amendment. I do not know whether we should call it the "co-opt Winnie Ewing" amendment.

§ The Secretary of State for Scotland (Mr. Donald Dewar)
My hon. Friend is supposed to be supporting the amendment.

§ Mr. Dalyell
I do not want to do it any harm, because I certainly do support it, having been a Member of the indirectly elected Parliament and also a member of the Scrutiny Committee. My only trouble is that, if we co-opt Members of the European Parliament, where will it end? Should Members of the European Parliament be co-opted to the Council, or vice versa? However, using Members of the European Parliament for European legislation is a special case. Speaking for myself, I should like to think that, if there is to be an assembly at Holyrood, David Martin, the distinguished MEP for Lothians, will be able to play a part in it. I support the amendment.

§ Mr. Bernard Jenkin (North Essex)
I share the hon. Lady's warmth of feeling about the potential that Members of the European Parliament can offer the process of scrutiny. I, too, have sat on Scrutiny Committees. We are told that we have one of the best systems of pre-scrutiny of draft European legislation. To use a phrase in a foreign language, "Cela laisse un peu à désirer."
There is scant evidence that our deliberations have much influence on the process of drafting and negotiating European legislation. However, such proposals must be welcome if they create a community of ideas between different levels of government within the European Community.
562 We do not support the amendment, however, as we believe that it should be a matter for the Scottish Parliament. Just as we decide whether to bring Members of the European Parliament into our proceedings, that should be for the Scottish Parliament to decide, and not something that we should impose on it.

§ Mrs. McKenna
I sympathise with what the hon. Member for Moray (Mrs. Ewing) said, but her proposal is too prescriptive. The Standing Orders provide a framework within which the Scottish Parliament can operate, but many issues have been unexplored or misunderstood, as the Scottish Parliament will be in a much stronger position within the European Union than the Scottish National party has suggested.
For example, the Scottish Parliament will be able to appoint a Member to the Committee of the Regions. The Committee of the Regions comprises members of any parliamentary or Government organisation below the level of national Government. Clearly, the Scottish Parliament will fall into that category. As a result, when the Scottish Parliament is involved in pre-legislative consultation, it will be in a strong position. It will be able to make representations and to scrutinise European legislation as it is being prepared.
The amendment is far too prescriptive, as it leaves a host of possibilities in the relationship between the Scottish Parliament and Europe unexplored. The Parliament should have wider powers than the amendment would provide. I hope that it will be a listening and involved Parliament, that it will operate quite differently from this place, and that its Members will be invited to attend Committees and participate in decision making. I hope that the amendment will be withdrawn, because it should be a decision for the Scottish Parliament—once all the avenues have been explored, it should decide how it will operate.

§ Mr. Gorrie
We support the amendment tabled by the hon. Member for Moray (Mrs. Ewing). My hon. Friends and I have been airing other possibilities whereby the Scottish Parliament could experiment with Committees with full Members who were not Members of the Scottish Parliament. Instead of MSPs talking to deputations, people outside the Scottish Parliament who knew about or worked in a particular field—whether it was health, education or transport—as deliverers or users of services could join MSPs on Scrutiny Committees. The amendment is an extension of that.
We hope that the Scottish Parliament will experiment with much more flexible Committees than those in the House. Whether that is achieved through its Standing Orders or by accepting the hon. Lady's amendment, I believe that it would be a move in the right direction.

§ Mr. McLeish
Once again, we are sympathetic to the spirit and the concept of the amendment tabled by the hon. Member for Moray (Mrs. Ewing). We want to make the Scottish Parliament different, and everyone in Scotland has accepted that it should have different machinery and procedures. There has been particular emphasis on pre-legislation discussions before Bills are published, and great play has been made of the fact that European legislation should have much greater scrutiny than it does in the House.
563 The hon. Lady referred to Europe. We are learning from Europe as we develop policies for the Scottish Parliament. That is part of the work of the consultative steering group, and it is important that we accept that the spirit of doing things differently and learning from Europe is fundamental to what we want to achieve.
7.15 pm
There may be occasions when contributions by MEPs might help in the consideration of EU proposals. However, how best to achieve that is a matter that should be left to the Scottish Parliament to decide.
Hon. Members must appreciate that the Scottish Parliament's Committees and sub-Committees will be composed of MSPs. It is obviously right and proper that only elected Members should have the right to vote when Committees take decisions. I appreciate that the hon. Lady is not suggesting anything to the contrary. Special provision is made in the Bill for the case where the Lord Advocate and the Solicitor-General are not Members of the Scottish Parliament. However, that does not prevent the Parliament from deciding whether and how to make provision in its Standing Orders on arrangements for inviting non-Members of the Parliament to attend Committees and participate in their deliberations, so that the benefit of their knowledge and experience is available to the Parliament. Again, I anticipate broad agreement that that is a sensible and constructive proposal.
I suggest that the matter might be taken up by the all-party consultative steering group, which has been established to look at the detailed Standing Orders for the Scottish Parliament. The hon. Lady smiles, but that is a genuine expression of sympathy for the points that have been raised. We have the opportunity within the consultative steering group and subsequently within the Standing Orders of the new Parliament to establish a proper precedent and procedure.
In view of that, I should be grateful if the hon. Lady withdrew her amendment, so that we can discuss how best the matter can be taken forward in the forum that we have to examine the pre-Standing Order position, and in the Parliament itself when it is established.

§ Mrs. Ewing
I have listened with interest to the comments in this short debate, and I shall not detain the Committee for long. The hon. Member for Linlithgow (Mr. Dalyell) seems to be personalising almost every amendment. Last night we had the "Sean Connery enabling amendment" and tonight it has been the "co-opt my mother-in-law" amendment. I was not proposing co-opting my mother-in-law, although she would be most effective in any Committee dealing with European legislation. However, it was important to explore the proposal in the context of the Scottish Parliament.
The exchanges that I have had with the Secretary of State about derogations and who takes the ultimate decision, and the long letters that were sometimes very difficult to comprehend, suggest there is a need for co-ordination between elected MEPs and MSPs

§ Mr. Dewar
Just to clarify a matter of some interest and importance, is it not true that the hon. Lady's mother-in-law has announced that she will not be a Member of the European Parliament after the next election?

§ Mrs. Ewing
The Secretary of State is not following matters carefully, because consultation is currently under 564 way in my mother-in-law's constituency. I know that the Secretary of State has addressed the issue through the Highlands and Islands Convention. Because of the changes in the elections to the European Parliament in Scotland, whereby eight MEPs will represent Scotland, the Highlands and Islands Convention is having to address proper representation and co-operation. In the context of the Scottish Parliament, there could be an extension of that argument, on which he and I agree.

§ Dr. Fox
As a matter of interest, is the logic of the hon. Lady's case that there would be circumstances in which she would envisage benefit being achieved from co-opting Scottish Members here to Committees of the Scottish Parliament, for the same reasons that she has given in respect of European legislation?

§ Mrs. Ewing
That does not apply to the schedule. You would rule me out of order, Sir Alan, if I carried on. There is a case for the Scottish Parliament to consider new ways of dealing with the information that comes to it and bringing in expertise. None of us wants to be narrow on that. That was the attitude behind the amendment.
Although I shall seek the leave of the Committee to withdraw the amendment, the Minister of State is beginning to give the steering committee a lot of hard work. I gave a very short precis of how other Parliaments work with their MEPs. The steering committee may be in danger of taking issues away from the House and not bringing them back at an effective stage. Perhaps he could ensure that that is given serious consideration on Report. I beg to ask leave to withdraw the amendment.