Commons Sitting of 12 May 1998

Preamble
The House met at half-past Two o'clock
PRAYERS
[MADAM SPEAKER in the Chair]
Oral Answers to Questions
  FOREIGN AND COMMONWEALTH AFFAIRS
  The Secretary of State was asked—
  FOREIGN AND COMMONWEALTH AFFAIRS

    Nigeria
    Fiona Mactaggart: What actions he is taking to help Nigerians establish democracy in their country. [40490]
    The Minister of State, Foreign and Commonwealth Office (Mr. Tony Lloyd): We are pressing the Nigerian regime to respect human rights and restore a credible and democratically elected civilian Government. We have measures in place against the regime and, with our European Union and Commonwealth partners, we are keeping the situation under close review. At the same time, we are supporting activities that promote human rights and democracy in Nigeria and strengthen its civil society.
    Fiona Mactaggart: Will my hon. Friend confirm that it is the Government's policy to promote democracy in Nigeria and other countries in the region, including Sierra Leone? Will he confirm that it is no part of the Government's policy to countenance any breach of the United Nations arms embargo?
    Mr. Lloyd: Our policy in Nigeria, and more widely in the region, is to promote democracy. My right hon. Friend the Prime Minister pointed out yesterday that the United Kingdom and the United Nations were trying to help the democratic regime of Sierra Leone against an illegal military coup. He also stated, quite clearly, that no one should breach a UN embargo.
    It may help the House if I quote briefly from a letter sent to the Prime Minister by President Tejan Kabbah, who said:
    "I recall during the Commonwealth meeting in Edinburgh, Mr Tony Lloyd remarking that while the British Government would continue to give diplomatic and other support to my Government, it could not provide it with lethal materials or weapons. As far as I was concerned the matter was closed".
    Mr. Crispin Blunt: Is it the Minister's assessment that the arms supplied to the Nigerian-led military observers group of the Economic Community of West African States—ECOMOG—which was working to
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    restore democracy in Sierra Leone at the specific urging of section 18 of Security Council resolution 1132, could possibly also have been supplied in breach of that resolution?
    Mr. Lloyd: The hon. Gentleman is right to ask that question. There is a real question about whether arms that go from anywhere into Sierra Leone are in breach of UN embargoes. I assure the House that the British Government, who were at the forefront of the UN move to establish an arms embargo in the first place, will also be at the forefront in ensuring that the legal position is rectified to allow the Government of Sierra Leone to conduct their business properly.
    Mr. Bob Blizzard: Does my hon. Friend agree that one of the essential ingredients of democracy is the rule of law? My constituent, Mr. Mark Davey, a welder in the oil industry, was murdered in Nigeria last month while he slept in a so-called secure compound. Since then, the Foreign Office has received no response from the Nigerian Government to requests for a copy of the police report and for the matter to be investigated by police at the highest level. Does my hon. Friend agree with me, and with my constituent's family, that that is unacceptable? Will he press the Nigerian Government at the highest level? Will he also try to enlist the support of the oil companies that employ people in Nigeria, as there are issues concerning the safety of British citizens working in the industry, as well as an obvious need to bring the murderers to justice?
    Mr. Lloyd: The whole House will join my hon. Friend in commiserating with the family of Mr. Mark Davey. The high commissioner has not yet received any response, or a copy of the police report on Mr. Davey's murder. He has been asked to arrange a visit to the Nigerian Foreign Affairs Ministry to press for news on progress in the case. I shall certainly ensure that we continue to press the matter from both London and the high commission until we reach an acceptable conclusion.
    Mr. David Faber: On 1 April, the Minister met representatives of non-governmental organisations to discuss democracy and human rights in Nigeria and Sierra Leone. On 19 March, he met the Foreign Secretary's special representative, Mr. John Flynn. Was Sandline International mentioned at either of those meetings?
    Mr. Lloyd: The best thing that I can say is that while many allegations have appeared recently, the hon. Gentleman should reflect on what I have already told the House today. I say again that no Minister had prior knowledge of or gave prior approval to any breach of the arms embargo. My right hon. Friend the Foreign Secretary is to establish an inquiry that will examine every aspect of the case. Unlike the previous Government in the case of Matrix Churchill, there will be no cover-up by this Government.
    Mr. Martin Salter: Is my hon. Friend aware of the harrowing case of Elizabeth Siah-Vandi, the 14-year-old daughter of a constituent of mine who is in hiding following the beheading of her uncle by the despotic regime of Johnny Paul Koroma in Sierra Leone? Does he agree that the removal of that regime has been

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    welcomed by human rights campaigners? What steps does he propose to ensure that Elizabeth is reunited with her family?
    Mr. Lloyd: I cannot comment on the specifics of an individual case, except to promise my hon. Friend that I shall look into it. I make the point solidly: the British Government worked hard for the restoration of democratic government in Sierra Leone because of the outrages committed by the junta. That is different from the arms-to-Iraq scandal, when the previous Government supplied arms to a regime engaged in torture and repression of its own people. That is the difference.

    South-East Asia (Karen People)
    Jackie Ballard: What discussions officials from his Department have had with representatives of the Karen people in south-east Asia. [40491]
    The Minister of State, Foreign and Commonwealth Office (Mr. Derek Fatchett): In the course of their normal diplomatic business, officials in Rangoon, Bangkok and London have met Karens. Most recently, in March, our ambassador at Bangkok and officials from London visited camps sheltering Karen and other refugees on the Thai-Burma border.
    Jackie Ballard: I thank the Minister for that reply. Will he ensure that the United Kingdom uses its presidency of the European Union to press for sanctions against the Burmese regime while it continues to repress pro-democracy groups and the Karenni people?
    Mr. Fatchett: The hon. Lady knows that the United Kingdom has in its presidency reconfirmed the common EU position on Burma, which expresses our strong condemnation of the Burmese regime's violation of human rights. I assure her that we will continue to work hard to help the humanitarian position of refugees, particularly the Karen refugees. She will be pleased to know that during the last financial year the United Kingdom devoted more than £250,000 to that purpose.
    Mr. John Wilkinson: Will the Minister's Department, on behalf of Her Majesty's Government, issue a reassuring statement to the Karen people of Myanmar, and to the peoples of all the states neighbouring India, about the grave potential consequences of the detonation of three nuclear devices in a test programme by the Indians yesterday and the risk of an arms race and nuclear proliferation in the region?
    Mr. Fatchett: I am sure that all hon. Members condemn the nuclear explosions detonated by the Indian Government yesterday. They will add to regional instability and are a source of concern for others in the region. We urge the Indian Government to sign up to the non-proliferation and test ban treaties. We also urge restraint on Pakistan so that it is not persuaded into an arms race that would be even worse for the stability of the region.

    Cyprus
    Mr. Nigel Waterson: What plans he has to visit Cyprus to discuss a settlement between the communities; and if he will make a statement. [40492]
    Mr. Andrew Love: What support the Government are giving to efforts to recommence the United Nations-sponsored negotiations in Cyprus. [40505]
    The Minister of State, Foreign and Commonwealth Office (Mr. Derek Fatchett): We fully support the current UN efforts to achieve the resumption of negotiations on a comprehensive political settlement in Cyprus. My right hon. Friend the Foreign Secretary met the UN Secretary-General on 3 April to reiterate that message.
    My right hon. Friend has no immediate plans to visit Cyprus, but we continue to maintain close contact with leaders of both communities in Cyprus with the aim of getting the UN negotiations resumed.
    Mr. Waterson: I thank the Minister for that answer. Following the recent visit to the island by Mr. Holbrooke, I urge the Minister not to allow any retreat from the proposals for a federal solution and I ask him to continue to urge the Americans to keep up their pressure on the Turkish Government.
    Mr. Fatchett: We shall certainly continue to work with all our allies toward the objectives set out by the hon. Gentleman. We strongly support a bi-zonal, bi-communal solution to the problems of Cyprus as that is the only way to make progress. Whatever contribution we, the United States and the United Nations can make toward that objective will clearly be welcome.
    Mr. Love: May I add my voice and those of my Cypriot constituents to those expressing concern at Mr. Denktash's decision to impose conditions that effectively block further negotiations toward a settlement? Will my hon. Friend reassure the House that the Government are taking every action, both in Cyprus and in Athens and Ankara, to ensure that the parties are brought to the negotiating table as soon as possible?
    Mr. Fatchett: Like all other disputes of this sort, the Cyprus problem lends itself only to negotiation and to a resolution via the diplomatic process. There is no other way in which there can be a just and lasting settlement to the problems of Cyprus. Such a settlement is in the interest not only of Greek Cypriots, but of Turkish Cypriots. We shall continue to remind Mr. Denktash of his responsibility to the peace process and to his own people.
    Mr. Mike Hancock: May I use this opportunity to congratulate David Madden, the high commissioner in Cyprus, and his staff on the work they have done to support the bi-communal activities of the Cypriot people? May I also seek an assurance from the Minister that we will make every effort to bring the two communities together and exert pressure on Mr. Denktash? The real solution to the Cyprus problem, when one accepts that both communities want a solution, is that pressure needs to be exercised through Ankara.

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    Until the British and American Governments are prepared to tackle that issue front-on, the situation in Cyprus will continue not to be solvable.
    Madam Speaker: I did not hear a question in that, but I am sure that the Minister will respond to the hon. Gentleman's comments.
    Mr. Fatchett: I shall do my best to help the House by finding a question. I shall then set up my own question and answer it.
    I shall convey the hon. Gentleman's congratulations and best wishes to our high commissioner—I am sure that they are well deserved. He is right in saying that there is a need for movement on both sides, including Turkey, if we are to come up with a satisfactory solution. I emphasise the point I made to my hon. Friend the Member for Edmonton (Mr. Love); the only way to achieve that is through negotiation and diplomatic activity and I assure hon. Members that we will spare nothing in our diplomatic efforts.
    Ms Joan Ryan: I understand that my right hon. Friend the Foreign Secretary is to visit Turkey in the near future. Will the Minister comment on whether he will urge the Government of Turkey to press Mr. Denktash and his regime to take a far more positive approach to a just solution for Cyprus in line with the United Nations resolutions?
    Mr. Fatchett: I find it surprising that Conservative Members can find nothing else to do but laugh when we are dealing with such difficult and sensitive issues, especially given the suffering endured by the people of Cyprus over the past 20 years or more.
    My right hon. Friend the Foreign Secretary will indeed urge the Turkish Government to become involved in a solution to the problems of Cyprus, which would be in the interests of Turkey and of the Turkish Cypriots. We hope that that approach will enable us to make progress in the near future.
    Mr. Eric Pickles: Part of the increasing tension is undoubtedly due to the purchase of £600 million-worth of anti-aircraft missiles by the Cypriot Government. In our presidency of the EU, what pressure does the Minister think we can bring to bear to ensure that that additional military hardware does not further exacerbate the situation in Cyprus?
    Mr. Fatchett: I realise, from the serious nature of the hon. Gentleman's question, why he has risen to the status of vice-chairman of the Conservative party. He is taking the issues seriously and he is right to say that the introduction of the S-300 missiles later this year will add to the tension. We have said that that is unwelcome and it is not in the interests of the people of Cyprus. We will urge caution and negotiation, as I have already said and will continue to say. The hon. Gentleman is right to ask for that restraint and continued negotiation.

    Middle East Peace Process
    Ms Julie Morgan: If he will make a statement on the talks held in London on 4 May on the middle east peace process. [40493]
    Mr. John Butterfill: If he will make a statement on the middle east peace process. [40495]
    The Secretary of State for Foreign and Commonwealth Affairs (Mr. Robin Cook): The UK was pleased to host the peace process meetings held in London last week. I met the US Secretary of State, Madeleine Albright, on the eve of those talks, and my right hon. Friend the Prime Minister and I repeatedly met Madeleine Albright and the two parties to the talks over the two days of meetings.
    Throughout those meetings we urged on both parties our view that the American proposals represent the best chance of breaking the deadlock. We welcomed President Arafat's acceptance of them. We regret that Prime Minister Netanyahu was unable to accept the American package, but we hope that further progress can be made when he meets Madeleine Albright tomorrow in Washington.
    We fully recognise the importance of security to the Israeli people, but we also believe that their security will be best served by a just and fair peace settlement.
    Ms Morgan: Does my right hon. Friend agree that one of the major problems is the resistance and inflexibility of Mr. Netanyahu and the Israeli Government regarding the peace talks that have been proposed? Will he continue to work with the US Government to encourage Mr. Netanyahu and the Israeli Government to accept those proposals?
    Mr. Cook: We will maintain very close contacts with the United States and I, in particular, will maintain close contact with Madeleine Albright. I pay tribute to her strong, firm leadership of the talks last week.
    Prime Minister Netanyahu has repeatedly said that he would like to go to final stages talks. The United States' strategy offered him the opportunity to do so, but those talks can commence only when we resolve the interim issues, and it is a matter of regret that he has been unable to accept what we regard as a fair and reasonable offer to settle interim issues so that we can get on with the final stages talks.
    Mr. Butterfill: Will the Foreign Secretary join me in congratulating The Times on publishing on Saturday probably the most balanced and detailed analysis of the problems in the peace process? Will he confirm that there are genuine difficulties relating, for example, to giving up the early warning systems on the Sumerian heights, to the flight path into Tel Aviv airport and to the aquifers that supply Jerusalem, but that genuine progress was made in narrowing the gap between the parties in the discussions held in London? Does he share my optimism that all those problems can be resolved with good will on both sides?
    Mr. Cook: I must confess that that article in The Times did not catch my eye on Saturday. Of course there are genuine problems, and nobody should take lightly Israel's

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    important concerns about security, but those issues are much more likely to be resolved in the context of progress in the peace process.
    In response to the hon. Gentleman's points about outstanding issues, I can tell him that Britain and Europe stand willing to help to resolve the issues relating to economic progress in Gaza, particularly the airport, the industrial park and the sea port. One of the great tragedies of the peace process is that it has been accompanied by a drop of one third in Palestinians' standard of living. It is vital that we restore to the ordinary families of Gaza a belief that the peace process will bring progress to them too.
    Mr. Jimmy Hood: I do not share the optimism that has been voiced. Does my right hon. Friend agree that all the evidence seems to show that Prime Minister Netanyahu and President Denktash have one feature in common: neither has any intention of reaching a peace settlement?
    Mr. Cook: My hon. Friend expresses a point of view. It is important for both Europe and the United States that we continue to take at their word the Government of Israel when they say that they wish to restore the peace process. After all, Mr. Netanyahu was elected on a commitment not to end the peace process but to achieve peace with security. There will be no security without peace and no peace unless we manage to get the peace process back on track.
    Mr. Michael Howard: As the right hon. Gentleman knows, the Israeli Government cite security concerns as their reason for refusing to withdraw from territory on the west bank. What action have the United Kingdom Government taken to reinforce the ability of the Palestinians to deal with terrorist activity emanating from their territory in association, liaison and co-operation with the Government of the state of Israel?
    Mr. Cook: I am delighted to tell the right hon. and learned Gentleman that Europe and Britain have been at the forefront of working with the Palestine National Authority to enhance its capacity to deal with security. That is why when I was in Gaza we announced a permanent joint security committee, which is being supported by a British expert who has real expertise in security and intelligence matters. We are providing practical and real help to enable the Palestine National Authority to get on top of the security problem. I regret that the Government of Israel declined our invitation to join that committee. I hope that they will reconsider their decision in the future.

    Lisbon Expo
    Mrs. Helen Brinton: What plans he has to visit the Lisbon Expo; and if he will make a statement. [40494]
    The Minister of State, Foreign and Commonwealth Office (Mr. Derek Fatchett): My right hon. Friend the Foreign Secretary very much hopes to visit Expo 98 in Lisbon and the United Kingdom pavilion. The Expo offers us an important opportunity to highlight British achievements in ocean technology, research and
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    management. The United Kingdom pavilion will project an innovative and creative Britain in a lively and entertaining way. I am pleased to announce that I shall visit the United Kingdom pavilion on Thursday this week, ahead of the opening of Expo 98.
    Mrs. Brinton: I thank my hon. Friend for his reply. Will he ensure that, at the Lisbon Expo, the British Council encourages as many Portuguese students as possible to study at universities in this country? Is he aware that a new university is to open this year in my constituency, and we would very much welcome them?
    Mr. Fatchett: The British Council will play an important role in the Expo and in Britain's display there. The British Council is an extremely important asset to Britain, not just in Portugal but in other parts of the world, as it sells British higher education, the English language and British culture in the roundest possible sense. I am sure that the university in Peterborough will be a tremendous success.
    Mr. Peter Viggers: Does the hon. Gentleman agree that Portugal is our oldest ally and a good friend—a relationship that will no doubt be reinforced by the excellent British contribution at the Lisbon Expo? That relationship subsisted during the Salazar regime. Does the hon. Gentleman agree that that demonstrates that friendship between nations is best exemplified by trade and relationships between peoples rather than by some cant about an ethical foreign policy?
    Mr. Fatchett: I welcome the hon. Gentleman's opening comments. There is no doubt that Portugal and the United Kingdom are long-standing allies—indeed, Portugal is our longest-standing ally in Europe. Relationships depend upon much more than trade. In the case of Portugal, we have a range of shared democratic values that are crucial to the relationship between our two countries.

    Middle East Peace Process
    Mrs. Louise Ellman: What consultations he has held with (a) Israel, (b) the Palestine National Authority and (c) Arab states concerning securing peace in the middle east. [40496]
    The Minister of State, Foreign and Commonwealth Office (Mr. Derek Fatchett): The Foreign Secretary and the Prime Minister met both the Israeli Prime Minister and President Arafat last week in London.
    Mrs. Ellman: Does my hon. Friend welcome Israel's commitment to implementing United Nations Security Council resolution 425, which calls for Israel's withdrawal from the occupied areas of Lebanon? Does he agree that, in order to make that meaningful, both Syria and Lebanon must ensure that the civilians on Israel's northern borders do not suffer further attacks?
    Mr. Fatchett: The Israeli Government have offered to accept conditionally United Nations Security Council resolution 425, which is unconditional in demanding Israel's withdrawal from southern Lebanon. My hon. Friend's point is that we must have progress on the

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    Syrian-Lebanese track, and it is important that we have a comprehensive peace settlement covering the whole region. That is why she is right to stress the need to build security in south Lebanon through a comprehensive agreement with both Syria and Lebanon.
    Mr. Nicholas Winterton: Does the Minister accept that one of the problems of bringing about peace in the middle east is the fact that not one responsible Arab leader trusts the Prime Minister of Israel, Mr. Netanyahu? Would not Mr. Netanyahu contribute towards the peace if he stopped building those odious settlements on Palestinian land, thus depriving Palestinians of their land and the ability to make a living and to live in peace?
    Mr. Fatchett: We have condemned the building of settlements and any action that pre-empts the final status negotiations. The hon. Gentleman probably does his cause no good by using such strong and intemperate language. We do not choose our negotiating partners, but we must ensure that those negotiations are a success. We are looking for progress on the middle east peace process. That is in the interests of Palestinian, Israeli, Syrian and Lebanese alike, and we shall continue to work towards that just objective.
    Rev. Martin Smyth: Does the Minister agree that, as the Prime Minister said, although the talks last week produced no breakthrough, they did not break down? Does he further agree that neither in Oslo nor later in Hebron in 1997 were any percentages detailed for territorial redeployment? That was to be implemented by Israel; it was not to be an issue for discussion with the Palestinians.
    Mr. Fatchett: As the hon. Gentleman knows intimately, the value of continuing discussion is that it can often lead to a successful outcome in negotiations. We are seeing that in Northern Ireland, and I hope that we shall also see it in the middle east. My right hon. Friend the Prime Minister helped to keep those talks going. If we can take the talks on to Washington successfully, that will be in the interests of everyone in the region.

    Burma
    Mr. Jonathan Shaw: If he will make a statement on United Kingdom relations with Burma. [40497]
    The Minister of State, Foreign and Commonwealth Office (Mr. Derek Fatchett): We are deeply concerned about the political, economic and human rights situation in Burma. We are exerting pressure on the Burmese to engage in substantive dialogue with political leaders, including Aung San Suu Kyi. We have used our EU presidency to renew EU measures against Burma. We also drafted the tough resolution on Burma for the United Nations Commission on Human Rights agreed in April. We continue to provide humanitarian assistance to Burmese refugees.
    Mr. Shaw: I thank my hon. Friend for that reply. Has he seen recent reports that the economic sanctions against Burma are beginning to bite? Will he ensure that
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    Japan and other Association of South East Asian countries implement them to make sure that the international community does not open any dialogue with the Burmese junta until the junta has opened negotiations with the democratic forces in that country?
    Mr. Fatchett: My hon. Friend is right to say that the only way towards progress for Burma is through a political solution that recognises democratic rights and human rights. We are encouraged by the fact that some members of ASEAN are engaging much more constructively and openly in their discussions on Burma. We see that as progress. The way in which they are using their influence on the regime in Rangoon could be a positive source for the future. We shall continue to work for a democratic Burma because, again, through the restoration of democracy and human rights, we have the best chance of moving Burma forward and making progress.

    Human Rights Annual Report
    Ann Clwyd: What representations he has received on his recently published annual report on human rights. [40498]
    The Minister of State, Foreign and Commonwealth Office (Mr. Tony Lloyd): The report has been generally welcomed by non-governmental organisations and others. I have received no formal representations.
    Ann Clwyd: On behalf of the parliamentary human rights group, may I say that we welcome the publication of the report? It is an important innovation in British foreign policy and we hope that it will stimulate discussion of such important issues in Parliament and elsewhere. Will my hon. Friend expand on the section of the report that discusses the setting up of a permanent international criminal court? Will he confirm that people such as Saddam Hussein, who are guilty of war crimes, crimes against humanity and genocide, will never escape justice?
    Mr. Lloyd: I am grateful for my hon. Friend's comments on the human rights report; her welcome very much mirrors that of others. The Government are determined to make progress on the international criminal court at the Rome conference in June. We strongly believe that the crime of genocide and the other crimes against humanity committed by Saddam Hussein cannot escape that international process. We would support a proper judicial process to bring Saddam Hussein to book to show that the world is united in condemnation of the horrors that he has inflicted on his people.
    Mr. Bowen Wells: Does the Minister agree that the human rights situation in Nigeria should have been highlighted in the report? General Abacha, the leading member of the junta, licensed five political parties to contest the coming presidential election and, lo and behold, he is the only candidate of all five political parties. Surely that is a case of democracy and human rights being denied throughout Nigeria, which should be condemned.
    Mr. Lloyd: The hon. Gentleman should be in no doubt that the Government are in the forefront of those

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    criticising Nigeria for its continued abuse of the rights of its own people, arbitrary detentions, repression of basic freedoms and erosion of democracy. There is no doubt that the EU got it right when it said that the transition programme to democracy was now fundamentally flawed.
    Ms Diane Abbott: Does my hon. Friend accept that one of the basic human rights is the right to life, health and basic subsistence, and that millions of people throughout the world, particularly children, are deprived of that basic right because of the burden of international debt? Does he further accept that millions of people throughout Britain, particularly in the Churches, support the Jubilee 2000 demand for debt forgiveness to mark the millennium?
    Mr. Lloyd: I well understand my hon. Friend's point. We recognise the strength of feeling in Britain which that campaign demonstrates. The United Kingdom believes that, globally, individuals have the right to development. For example, negotiations on the right to development at the Commission on Human Rights were enhanced by the United Kingdom's presidency of the EU. We strongly believe that we can make progress internationally and that Britain is playing a moral role at home.
    Dr. Jenny Tonge: Britain is still training military personnel from Indonesia and sending arms to that country, which is not famous for respecting human rights. When will the Government start practising what they preach?
    Mr. Lloyd: The overnment certainly do practise what they preach, in remarkable and stark contrast to the previous Government. The same export licence criteria apply to the Indonesian Government as to any other country. My right hon. Friend the Foreign Secretary announced a change to the former United Kingdom military training and assistance scheme when he introduced ASSIST, which places an emphasis on human rights training and respect for civilian and democratic government. That is the direction in which this Government are going; that is not the direction in which the previous Government sought to go.
    Mrs. Margaret Ewing: All hon. Members support the concept of human rights. Surely one of the major challenges facing us is the need to support those who work in difficult circumstances in many parts of the world to achieve basic human rights. Will the Minister, therefore, tell us whether he has any information about the fate of the president of the Turkish human rights association who, I understand, was shot six times today in his office and whose condition is critical?
    Mr. Lloyd: I cannot help the hon. Lady with the specific details because I do not know them. The House and the world will view that development with alarm and concern. It is incumbent on the Turkish authorities to discover who committed the crime and to ensure that they are brought to justice.
    Mr. Ernie Ross: May I thank my hon. Friend for the publication of the first human rights report in the 19 years that I have been a Member of Parliament, which is a welcome change in respect of the Foreign
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    Office? The Foreign Affairs Select Committee has investigated human rights, and everyone who gave evidence welcomed the fact that we should have an annual report and be able to discuss with the Foreign Office how we could improve this country's ethical foreign and human rights policy.
    Mr. Lloyd: A primary purpose of the report is to bring new openness to the way in which the Government conduct their affairs in respect of human rights. It is a matter of recorded fact that Conservative Members have made no pressure for that sort of openness and a matter of practical fact that, for the most part, they have never engaged in debate on human rights. My hon. Friend represents the body of opinion that wants proper and credible debate on the issue, and wants to make sure that the British Government can hold their head up in the world, as the present Government can on those issues.

    Israel
    Mr. Stephen Day: If he will make a statement on the United Kingdom's relations with the Government of Israel. [40500]
    The Minister of State, Foreign and Commonwealth Office (Mr. Derek Fatchett): We enjoy excellent relations with Israel.
    Mr. Day: Can the Minister assure the House that the traditionally excellent relationship between the United Kingdom and the state of Israel has been repaired following the disastrous consequences of the Foreign Secretary's visit to Israel recently?
    Mr. Fatchett: During the lifetime of the Government, we have enjoyed an excellent relationship with the state of Israel and we shall continue to do so.
    Mr. Roger Stott: I regret to admonish my hon. Friend, but I hope that he will reconsider his remarks to the hon. Member for Macclesfield (Mr. Winterton), who asked about settlements and the Israeli Government's position. The hon. Gentleman represented the view of the House of Commons. Will my hon. Friend reconsider his words about intransigence? Most hon. Members believe as the hon. Gentleman believes.
    Mr. Fatchett: There is no difference between my position, that of my hon. Friend and, indeed, that of the hon. Member for Macclesfield (Mr. Winterton). There is no question about the Government's policy: we have said constantly that we oppose the building of settlements and that we will take no steps that would pre-empt the final status negotiations. I said to the hon. Gentleman that we do not have the right to choose the parties with whom we negotiate. We have to negotiate with them, whatever we may think of them in personal terms. We have to make the best of the process and of the negotiations, because, as my hon. Friend knows, the only way in which to make progress is through a satisfactory solution. That will come through negotiation and diplomatic activity.

    EU (Subsidiarity)
    Mr. John Bercow: If he will make a statement on progress in respect of subsidiarity within the European Union. [40502]
    The Secretary of State for Foreign and Commonwealth Affairs (Mr. Robin Cook): Since Maastricht, subsidiarity has been important in ensuring that the Community acts only where results can be achieved better by action at European level. The subsidiarity protocol of the Amsterdam treaty, for the first time, sets out in the treaty the procedures that should be used in applying the principles of subsidiarity and proportionality to European Union legislation.
    Mr. Bercow: Is the right hon. Gentleman aware from his close reading of the text that the subsidiarity protocol of the Amsterdam treaty requires the maintenance, in full, of the acquis communautaire and the institutional balance? Given that he has accepted that pitiful state of affairs, does he expect a single European Union power to be repatriated to the United Kingdom in the lifetime of this Parliament, or has he thrown in the towel and once again let down the people of Britain?
    Mr. Cook: I am aware that those words are in the protocol. They are in the protocol because they are the words that the Conservative Government accepted at Maastricht. For once, the hon. Gentleman is unfair to the previous Administration. As a result of the negotiations at Maastricht, 12 different regulations were dropped and fewer regulations have been introduced in every year since then. It would have been nice if the Conservative party when in government had applied subsidiarity in practice. It is this Government who are now implementing subsidiarity, not just between us and Brussels, but between London, Whitehall and Scotland, London and Wales, and London and the rest of Britain.
    Mr. Bercow: On a point of order, Madam Speaker.
    Madam Speaker: I do not take points of order during questions. If the hon. Gentleman wants an Adjournment debate, he should know how to deal with that.
    Mr. Bill Rammell: Does the Secretary of State agree that the Amsterdam treaty specifically enshrines the principle of subsidiarity for the first time, and forces on the European Commission a duty to consult widely and to justify action at a European as opposed to a national level? We need such progress in Europe, rather than the incessant criticism that we get from the Conservative party, which makes none of those points and constantly attempts to obscure the truth.
    Mr. Cook: My hon. Friend is absolutely right. The protocol makes it clear that for Community legislation now to be proposed, it must be shown that matters can be achieved better at Community level than at national level. It must also be shown that such legislation will produce clear benefits that could not be secured at national level. That is now written into the treaty for the first time. It is something that the Conservative Government did not achieve at Maastricht, and it is a clear advance for the principle of subsidiarity.
    Mr. Michael Howard: Will the Foreign Secretary reconsider his answer to my hon.
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    Friend the Member for Buckingham (Mr. Bercow) about whether the preservation of the acquis was in the Maastricht treaty as opposed to the Amsterdam treaty? Does he accept that his answer to my hon. Friend was entirely incorrect? I fear that that is another example of the right hon. Gentleman not reading the material that is put before him.
    Mr. Cook: I am happy to tell the right hon. and learned Gentleman that what I said was entirely consistent with what I was told two hours ago. Conservative Members complain that we are not briefed, and then they complain when we are briefed. Those are, indeed, the words that were accepted by the previous Government at Maastricht, so it is a bit rich for the right hon. and learned Gentleman to complain to us now.

    Kosovo
    Mr. Ben Bradshaw: If he will make a statement on the situation in Kosovo. [40504]
    The Secretary of State for Foreign and Commonwealth Affairs (Mr. Robin Cook): The situation in Kosovo continues to be a matter of deepening concern. Fatalities in Kosovo are now an almost daily occurrence, and the authorities in Belgrade must accept major responsibility for the failure to start a political process, which is vital if we are to stop the violence.
    Last Friday, at the meeting of the G8 Foreign Ministers, it was agreed by those present that we should proceed to impose the investment ban recommended by the last meeting of the contact group. During our presidency of the European Union, I have repeatedly made it clear to Belgrade that we want a closer working relationship with the Federal Republic of Yugoslavia. There could, however, be no question of us accepting the Federal Republic as part of the family of modern Europe unless Belgrade stops its present repression and starts to respect the principles of human rights.
    Mr. Bradshaw: Given my right hon. Friend's extremely worrying reply, will he assure the House that he will use his presidency to do all he can to implement the decision to send a mediator to Kosovo? Does he agree that it would be wrong for Europe to sit back and wait for the Americans to take the lead? We would be making exactly the same mistake as we made in Bosnia, with knobs on.
    Mr. Cook: There can be no question of Europe sitting back and allowing America to take the lead. I hope that Richard Holbrooke's current mission in Belgrade is a success. On the question of a facilitator, I have recently written to President Milosevic urging him to accept the role for Felipe Gonzalez. We shall continue to press on him Mr. Gonzalez's role as special representative of the European Union and of the Organisation for Security and Co-operation in Europe. In the meantime, although Belgrade refuses to accept outside facilitation, it is important for us to maintain the pressure, which is why we agreed to the ban on new investment within the Federal Republic.
    Mr. Gary Streeter: Is the Foreign Secretary now able to tell us more than he was able to tell

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    the House on 30 April in response to questions by my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard), first, about the extent and effectiveness of the monitors who were deployed by the European monitoring mission within Kosovo and secondly, whether any further action has been considered or taken to strengthen the UN forces that are stationed on the Kosovo-Macedonia border? Can he reassure the House that he is receiving and reading comprehensive and up-to-date briefings from his officials on this situation, so that he can take timely and well-informed decisions on matters which, after all, affect the lives of many people?
    Mr. Cook: The hon. Gentleman asks about the European Union monitors. Five such monitors are currently attached to the Federal Republic of Yugoslavia. As much as possible, they have given continuous provision within Kosovo, and their monitoring reports have been well received by the international community and have kept us up to date. Yes, I should like to see more monitors there, but to achieve that, we should have to get an agreement from Belgrade, and at present, such agreement has not been forthcoming. The provision of UNPREDEP, the UN preventive deployment force, on the Macedonian border is a clear commitment, and we have repeatedly confirmed to the contact group that there will be an extension of the mandate. Quite what the balance of forces will be—whether it will be a UN or a NATO force—remains under negotiation. However, for the first time, we shall be holding a partnership for peace exercise in Macedonia this autumn in which British troops will participate.

    Israel
    Mr. Ivan Lewis: If he will make a statement on the Prime Minister's recent visit to Israel and the progress of the subsequent talks. [40506]
    The Minister of State, Foreign and Commonwealth Office(Mr. Derek Fatchett): My right hon. Friend the Prime Minister had a successful visit to Israel on 19 to 21 April. As a result of his meetings with regional leaders, the United Kingdom was able to facilitate the talks on the peace process, which were held in London on 3 to 5 May.
    Mr. Lewis: Notwithstanding the virtue or otherwise of regularly winning the Eurovision song contest or the short-term difficulties that currently face the peace process, will my hon. Friend take this opportunity to pay tribute to the state of Israel on its 50th anniversary for its economic and social progress, and for the fact that it remains the only democracy in the middle east?
    Mr. Fatchett: I am happy to pay tribute to the successes of the state of Israel to which my hon. Friend refers. The best birthday present for the people and the state of Israel would be a comprehensive and lasting peace for the region. I hope that all political leaders in Israel and in the region share that common goal and will work towards that objective.
    Dr. Julian Lewis: As it took a visit by the Prime Minister to the middle east and Israel to clear up the mess that was left behind after the Foreign
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    Secretary's visit, does the Foreign Office have any plans for the Prime Minister to follow the Foreign Secretary on his forthcoming visit to Turkey as well?
    Mr. Fatchett: As the hon. Gentleman says, the visit by my right hon. Friend the Prime Minister was extremely successful. It succeeded in bringing the parties together in London, and I should have thought that the hon. Gentleman would be satisfied with that result. Instead of smirking, it is about time that he invested something in the peace process, which is a great deal more important.

    Manufacturing Exports
    Mr. Barry Jones: If he will make a statement on the means by which his Department assists UK manufacturing industry's exports. [40510]
    The Minister of State, Foreign and Commonwealth Office (Mr. Derek Fatchett): On 25 March I, together with colleagues from the Department of Trade and Industry, launched a new package of measures that is based on the recommendations of the export forum to help exporters. We have also launched the ambassadors for British business scheme and a programme of short-term attachments of business people to our overseas posts. Those projects are helping to make the Foreign Office more businesslike and to focus on the needs of our customers. The new schemes are in addition to the wide range of assistance that is provided to British companies by our global network of 217 commercial posts in 140 markets.
    Mr. Jones: I am grateful to my hon. Friend for that comprehensive reply. Will he please continue to use the full resources of his Department to assist the British aerospace industry abroad?
    Mr. Fatchett: I am happy to give that commitment to my hon. Friend. He has been a true champion of the industry during his years in the House of Commons, and his constituents know the valuable role that he has played in that respect. That is why his majority has increased at every successive election.
    Mr. Jonathan Sayeed: The Minister will be aware that General Motors was thinking of withdrawing its investment from Vauxhall in Luton. Is he aware that Vauxhall cited as one of the reasons the high value of the pound?
    Mr. Fatchett: The hon. Gentleman establishes his question on a false assumption and hypothesis, so I will not answer it. Vauxhall is still with us. We look forward to it staying with us because it is an important inward investor in Britain and has a good reputation.
    Mr. Barry Sheerman: Will my hon. Friend ensure not just that resources are moved around in our efforts to increase British exports, including British manufacturing exports, but that there is a real percentage increase in the resources that are devoted to that important task? Does he agree that if British Airways flew throughout the world using not only Boeing jets powered

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    by Rolls-Royce engines, but the airbus, which has a larger percentage of British-manufactured components, we should have a good ambassador for British products?
    Mr. Fatchett: The export forum report recommended that we should concentrate our additional resources for export promotion on a number of priority markets. We aim to do that, and to ensure we have a more driven commercial response to the needs of those particular markets and the companies that operate in them, so my hon. Friend can be assured that additional resources, as and when they become available, will be used in that way. He is right, of course, to talk about the successes of the British aerospace industry. Rolls-Royce and the airbus are fine examples of British technology and British engineering.

    Defence Staff Attachments
    Mr. Nicholas Soames: What discussions he has had with the Secretary of State for Defence on the attachment of Ministry of Defence staff to embassies. [40511]
    The Minister of State, Foreign and Commonwealth Office (Mr. Tony Lloyd): My right hon. Friend the Foreign Secretary has not discussed that matter directly with my right hon. Friend the Secretary of State for Defence, but our two Departments remain in close contact on all aspects of such attachments.
    Mr. Soames: In the past few weeks, hon. Members will have seen the importance of steady, sensible military advice to the Foreign Office. Does the hon. Gentleman agree that it is important that more officials from the Foreign Office do attachments to departments in the Ministry of Defence, and that more service men and women in the MOD go to the Foreign Office? Does he agree that that is one of the most important ways in which to encourage the vital understanding that should exist between those two Departments and that, although there are some moves to that end, there should be many more?
    Mr. Lloyd: There is no doubt about the valuable role that service attaches play throughout the world. The co-ordination between the two Departments responsible—the Foreign Office and the Ministry of Defence—is close because they both recognise that that is important. In the context of the hon. Gentleman's original, perhaps less charitable, point, I thought that he might have taken the opportunity to congratulate the defence adviser who was based in Accra, but attached non-residentially to Sierra Leone, who was decorated for his valiant service at the time of the evacuation of British people and others whom Britain helped. That would have been a fitting tribute to that important role and perhaps more fitting to the tone of the later question.

    Algeria
    Mr. Andy King: If he will make a statement on UK relations with Algeria. [40514]
    The Minister of State, Foreign and Commonwealth Office (Mr. Derek Fatchett): The UK maintains a broad-based dialogue with Algeria, at both political and
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    senior official levels. We remain deeply concerned about the continuing violence there and believe that dialogue offers the best chance of contributing to an improvement in the situation. As we hold the presidency of the European Union, we co-ordinate our position on Algeria with our partners, who share our commitment to dialogue. As part of that process, earlier this year, I led an EU mission to Algeria.
    Mr. King: I thank my hon. Friend for that reply. Does he agree that the price of victory and the power struggle in Algeria is being paid for with the bodies of innocent women and children?
    Mr. Fatchett: I am sure that every hon. Member shares the view, expressed by my hon. Friend, that every loss of life is one too many. Algeria has suffered great human loss in the past few months and years, and we need to ensure that it is brought to an end. If the United Kingdom and the European Union can contribute to the political dialogue to achieve that objective, we shall do so.
    We should also like there to be, internally, much greater openness, transparency and respect for human rights in Algeria, which is why both the European Union and the United Kingdom have been trying to persuade the Algerian Government that there is a need for the Algerians to invite in United Nations special rapporteurs. I am sure that it would be in the interests of us all, including the Algerians, to ensure that there is such openness, and that we have a full record of what happens internally within Algeria.

    Turkey
    Mr. Ben Chapman: What assessment he has made of the progress of the Turkish economy in recent years and its attractiveness to UK investors and exporters. [40516]
    The Minister of State, Foreign and Commonwealth Office (Mr. Derek Fatchett): In recent years, Turkey has become a key market for British companies. In 1997, two-way trade between the United Kingdom and Turkey reached a new record of £2.8 billion. British exports to Turkey alone amounted to £1.76 billion, which was an increase of 13 per cent. on 1996. However, there is still potential to increase bilateral trade further. To that end, on 25 June, my noble Friend the Minister for Trade, Lord Clinton-Davis, will launch a target market campaign to promote the opportunities that the Turkish market offers.
    Mr. Chapman: I thank my hon. Friend for that answer. Is he aware that the Turkish CBI and—during its recent visit—the Anglo-Turkish Business Council have confirmed that the investment climate for British firms in Turkey is increasingly attractive? Does he also agree that trade and investment are but one part of an important bilateral relationship, and that the value of that relationship is such that it makes the Luxembourg decision look ever more disappointing?
    Mr. Fatchett: We seek a full and rounded relationship with Turkey, involving both trade and a political dialogue. As part of building that relationship, we have made it clear that we should like Turkey to be engaged in the European process and involved in future discussions on European Union enlargement.

Sierra Leone
3.31 pm
Mr. Michael Howard(by private notice): To ask the Secretary of State for Foreign and Commonwealth Affairs whether he will make a statement on the supply of armaments to Sierra Leone in the light of the Prime Minister's statements on the outcome of events there.
The Secretary of State for Foreign and Commonwealth Affairs (Mr. Robin Cook): As I reminded the House last week, President Kabbah, the democratically elected leader of Sierra Leone, was deposed in a military coup in 1997. Britain continued to recognise President Kabbah as the legitimate Head of Government of Sierra Leone, and Britain played a leading part at the United Nations in drafting the Security Council resolution calling for the peaceful restoration of constitutional government.
The peaceful restoration of President Kabbah remained the sole policy of Her Majesty's Government. [Interruption.] My right hon. Friend the Prime Minister demonstrated our continuing support for President Kabbah by inviting him to attend the Commonwealth Heads of Government meeting in October—[Interruption.]
Madam Speaker: Order. If hon. Members are not interested in hearing the statement, there are other areas of the House to accommodate them.
Mr. Cook: I appointed John Flynn to act as special representative on Sierra Leone, to co-ordinate international support for the restoration of the elected Government.
Earlier this year, President Kabbah was restored to power. As I said on Sunday, that was a positive outcome and represented the restoration of the legitimate and democratic Government, in place of a military regime. The outcome has certainly been welcomed as positive by the people of Sierra Leone, who were freed from a brutal and savage military regime. As the Minister of State, Foreign and Commonwealth Office, my hon. Friend the Member for Manchester, Central (Mr. Lloyd), saw when he himself visited Sierra Leone, it was a regime which punished those who opposed it by taking off their arms and their legs.
President Kabbah yesterday wrote to my right hon. Friend the Prime Minister, acknowledging this Government's position in supporting his democratically elected Government, and expressing his profound gratitude to this Government for their "principled and ethical position". My right hon. Friend was therefore absolutely right yesterday to draw attention to the fact that, in Sierra Leone, the legitimate and elected Government have been restored to power and a brutal military regime has been thrown out. Sierra Leone is no Iraq. In Iraq, a brutal dictator is still in power and still producing artillery shells on machine tools that were exported to him with the full connivance of the Conservative party.
My right hon. Friend the Prime Minister also said yesterday:
"nobody should be involved deliberately in breaking a UN arms embargo".
As a permanent member of the Security Council, the United Kingdom has a special responsibility to uphold UN resolutions. If we condone a breach of one resolution,
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we undermine the authority of other resolutions, such as those requiring Iraq to abandon its programmes of weapons of mass destruction.
We have therefore taken seriously the allegations that there may have been a breach of the arms embargo on Sierra Leone by a British firm. That is why the Foreign Office took the initiative in referring those allegations to Customs and Excise. The Foreign Office is fully and openly co-operating with that investigation. We want the public to know the truth—[Interruption.] Oh, yes; we want the truth—Conservative Members will not like it when they get the truth—and that is why I have ordered an investigation to commence as soon as Customs and Excise will agree, in order to bring all the facts out into the open.
As I said in the House last week, I am constrained as to how much I can say during the customs investigation, but I cannot allow wild allegations to continue to be made against the Foreign Office and its officials—[HON. MEMBERS: "You!"]—or to be recycled as proven fact by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) and his colleagues. I therefore say to the House that, in all the papers on this affair, I have found no evidence that officials in the Africa department were involved in any kind of conspiracy with Sandline or gave any prior approval to a breach of the arms embargo. The investigation that I have ordered will establish the truth, but in the meantime, I have more faith in my officials than I have in Sandline.
I note that the right hon. and learned Member for Folkestone and Hythe said in a letter to me that he is astonished that I did not clear my diary before Sunday. Perhaps I should remind him that, on Friday and Saturday, I hosted the meeting of G8 Foreign Ministers in which we co-ordinated our positions on Kosovo, the middle east, nuclear proliferation and many other issues. It is a remarkable testimony to the way in which the right hon. and learned Gentleman has got this issue out of all proportion that he imagines that Foreign Ministers of the seven largest economies in the world would be entirely understanding if I cleared them from my diary in order to answer his increasingly repetitive questions.
I urge the right hon. and learned Gentleman to stop talking of allegations against Foreign Office officials as if they were proven fact, and to wait for the full, considered report that the Government have promised—in stark contrast to the repeated cover-ups of the Government of which he was a member.
Mr. Howard: What I said to the right hon. Gentleman in my letter was that it was astonishing that he had not briefed himself fully on these events before Sunday. It is not surprising that, in his loneliness on the Front Bench, with no Cabinet colleague to support him apart from the Leader of the House, he should prefer to talk about Iraq rather than about Sierra Leone.
Is the Foreign Secretary aware that the Government's position on Sierra Leone is increasingly looking like a shambles? What he described as "very serious" last Wednesday became nothing more than an "overblown hoo-hah" yesterday. Does the right hon. Gentleman agree that the Prime Minister's intervention yesterday makes a laughing stock of him, and a complete mockery of any pretensions he may have to an ethical foreign policy? Will he confirm what he told the House last week—that there

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was no Government policy or UN support for military intervention to restore President Kabbah, and that the Government and the UN wanted him restored through diplomatic negotiations, not military intervention?
Will the right hon. Gentleman now answer the specific questions about his knowledge of these events which I sent him earlier today? What instructions did he give his private office to bring information to his attention? When was his private office informed of the involvement of Sandline International in operations in Sierra Leone, of plans for military intervention and of the Customs and Excise investigation? When did he himself first know of these matters?
Will the right hon. Gentleman comment on the position of the Minister of State? Can he confirm the report in The Sunday Times on 10 May that the searches carried out by Customs and Excise on the offices of Sandline International and the former house of Lieutenant-Colonel Spicer were delayed at the request of the private office of the Minister of State? Can he confirm that the reason for that request was so that the Minister of State could be briefed before the searches were carried out? Can he confirm that the Minister of State was, in fact, briefed before the search was carried out?
Will the right hon. Gentleman assure the House that, in the search for truth—about which he was so eloquent a few moments ago—the independent inquiry he has promised will be carried out by a judge and will take place in public, so that all the evidence can be reported, and so that there can be no question of a cover-up or a whitewash? Finally, is not the bottom line this: if, as is alleged, the Foreign Office knew of Sandline's involvement as early as December, but neither the right hon. Gentleman nor his Ministers knew of it until the end of April, does that not suggest that the Foreign and Commonwealth Office is wholly out of ministerial control, and that the right hon. Gentleman is utterly failing to discharge the duties he is paid to carry out?
Mr. Cook: The right hon. and learned Gentleman has again recycled the wild allegations I see in the press. [HON. MEMBERS: "Answer."] I will answer the right hon. and learned Gentleman, because the answers should be heard. There was no request to Customs and Excise from the private office of the Minister of State. I am bound to say that I would regard it as wholly improper if Customs and Excise were to hold up an investigation at a ministerial request. That is precisely why we have repeatedly made it clear that we will not do anything to prejudice that investigation. The right hon. and learned Gentleman owes my hon. Friend the Minister of State an apology for recycling that allegation.
On the question of knowledge, the right hon. and learned Gentleman has asked me seven different questions in writing about when I knew. I will answer. The first document that I saw about a breach of the arms embargo—[HON. MEMBERS: "Saw?"] Well, we will come back to that in a moment.
Madam Speaker: Order. I have had enough from some Opposition Back Benchers. The Foreign Secretary will be allowed silence in which to answer.
Mr. Cook: Thank you, Madam Speaker.
The first document that I received on any breach of the arms embargo or a shipment of arms was on 28 April, when I saw the letter. Since the right hon. and learned
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Gentleman asked the same question in multiple different ways, I have to say to him that the reason I say that is that no other paper on the matter had been put in a red box for me, a file for me, a folder for me, on top of my desk or on any other part of office furniture he cares to name.
Since the right hon. and learned Gentleman has raised in the House whether there were any changed instructions on what should go in the red box, let me say that the only instruction we have been able to trace is an instruction from my private secretary which confirms to the Foreign Office:
"The Secretary of State welcomes a fair amount of detail in the background note."
I am receiving full briefing from the Foreign Office. I strongly resent the suggestion that there has been any briefing on the matter that has not been read by me or by the Minister of State.
It is a bit rich for the House to be lectured on the proper management of a Department of State by the right hon. and learned Gentleman, who made an art form out of the distinction between policy and operational matters, and who lost 13 court cases because he refused to listen to officials.
Mr. Donald Anderson: Would not the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) and his former Cabinet colleagues be a little more credible if they came to this matter with clean hands? Should not he, as a lawyer, know that a fundamental principle of the law is to hear both sides—certainly not to pour scorn on officials, who cannot answer for themselves at this time?
Will my right hon. Friend take on board at least the concern that there is a real danger of excessive delay? As he well knows, prosecuting authorities, such as customs, can take an inordinate time. The Foreign Office investigation, which is very welcome, may not start until the customs investigation is near its end, so there could be a sub judice problem if prosecutions are recommended. Will he say when he expects the customs investigation to conclude, and decisions on prosecutions to be made?
Mr. Cook: It would be deeply improper for me to say to the House when customs will conclude an investigation. The important public policy issue, which will be of concern to both sides of the House, is that customs should complete the investigation thoroughly and assess clearly and fairly whether there is a case to answer—it would be wrong if that process were to be hurried because of any political consideration.
I assure the House that we intend to proceed to that investigation, which will be conducted by someone from outside the Foreign Office, the moment we receive the clearance from customs. I also assure my hon. Friend that we are determined that that investigation—which is for us to set up—will be established and carried out quickly, with a full report to the House as soon as possible.
That is important to the officials who have been repeatedly maligned in the press over the past few days. [Interruption.] No, I say to Opposition Members who are shouting that, as I repeatedly said in the House last Wednesday and have said every day over the weekend, what they read in the papers are allegations by Sandline's lawyers. I understand what Sandline's lawyers are doing:

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they are doing their job, which is to put the best possible colour on their client's case. That does not make their allegations true. From the papers that I have seen while Sandline has been peddling its allegations, I can say that many of them will turn out not to be true.
Mr. Mike Hancock: I am delighted, as I am sure my colleagues are, that the investigation will take place. However, we take the view, which I hope the Secretary of State will share, that the investigation should take place now, irrespective of the time the customs investigation takes, as the two are trying to discover two different things. I am sure that he would agree that it is in the best interests of the nation and the House that, so that the issue is not continually clouded and murky, the investigation that he has instigated should take place immediately, and, if necessary, run in tandem with the customs investigation. Anything short of that will be recognised as prevarication, and will not be reconcilable with the Government's ambition for open government.
The right hon. Gentleman says that no Minister in his Department had any involvement prior to his being told of the matter. Will he confirm this afternoon that that applies to the whole Cabinet, including the Prime Minister? Will he also say who approved the use of HMS Cornwall as part of the Sandline operation?
Mr. Cook: I have no personal interest in delaying the start of the investigation: on the contrary, I would welcome its starting as soon as possible. I cannot act as the hon. Gentleman suggests, precisely because many of those who would give evidence to the investigation are giving evidence to the present customs investigation, so it is impossible to launch the second without cutting across the first. I do not believe that the House would want me to take any step that would prejudice an investigation that may or may not lead to criminal charges.
The statements that I have made about no ministerial approval, contact or discussion apply across the Government, and not only in the Foreign Office.
I understand that the hon. Gentleman made his point about HMS Cornwall in good faith, but the House must understand that that is another of the allegations from Sandline's lawyers.
Mr. Hancock: What about the photograph?
Mr. Cook: I shall come back to the photograph in one minute.
The reality is that HMS Cornwall docked in Sierra Leone on 1 March, after most of the fighting was over and the military junta had been removed. It did not go there to take part in any Sandline activity. Indeed, President Kabbah himself, in his letter to the Prime Minister, said:
"I assure you most emphatically that at no time did my Government utilise mercenaries provided by Sandline."
HMS Cornwall went there to provide humanitarian relief, and it did a fantastic job, of which the House should be proud. To carry out that emergency supply up country, it had of course to fly its helicopter, and, as we would all expect its captain to be prudent about the lives of his
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service men, it had to have consultations with the local west African forces about where it was safe to fly. That is why the colonel of those west African forces—not a Sandline mercenary—repeatedly flew in that helicopter to the dock beside the ship.
The helicopter was on contract from Sandline, but that does not mean that HMS Cornwall was assisting Sandline in any mercenary activity; on the contrary, it shows that, in this case, the west African forces were helping Britain with humanitarian relief of which we should be proud, not ashamed.
Mr. David Winnick: The House is entitled to a full explanation, and we look forward to the inquiry, but should we not be grateful that, in one instance in Africa, an elected Government who were overthrown have been restored to office? Surely that is right and proper.
Does my right hon. Friend consider it appropriate to be lectured by Conservative Members who, right up to the very day of the Falklands invasion, actively encouraged the sale of arms to the junta in Argentina, as confirmed in a parliamentary answer that I received on 20 April 1982? We hear talk of hypocrisy, but what greater hypocrisy could there be than to be lectured on arms dealing by Conservative Members?
Mr. Cook: My hon. Friend makes his own point. There is a parallel that is even nearer to us in time: the way in which Ministers in the previous Government decided in secret to relax restrictions on the sale of arms to Saddam Hussein. The moment they were found out, they established an elaborate cover-up and, rather than admitting what they had done, were willing to see innocent people go to prison.
Mr. Douglas Hogg: Does the Foreign Secretary accept that those of us who worked for many years—four and a half, in my case—as Ministers in the Foreign Office know full well that officials are meticulous in keeping written records of their dealings, and that they ensure that their superiors, both official and ministerial, are kept fully informed in writing?
Were the following documents, or classes of document, received in any ministerial private office, and, if so, were they made available to Ministers: the reporting telegrams from Sierra Leone or any adjoining African country regarding Sandline's involvement in the coup; any documents regarding the Customs and Excise investigation into the Foreign Office; the correspondence with Lord Avebury; the record of meetings between Foreign Office officials and Sandline; and intelligence reports—that is, reports from Government communications headquarters or the Secret Intelligence Service—regarding Sandline's involvement?
Mr. Cook: The right hon. and learned Gentleman has asked a series of highly detailed questions. I accept that they are perfectly proper, but they require full and considered investigation. As general guidance, however, let me say, first, that it would be quite improper if we were passed papers from Customs and Excise, which is not our ministerial responsibility. As we referred the investigation to Customs and Excise, and have fully and openly co-operated with it, I would not expect such papers

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to be passed to me, for approval or otherwise. Secondly, the Avebury letter was addressed not to a Minister, but to an official, who replied to it. It was not sent up to Ministers until we subsequently received it from Sandline's lawyers.
As for intelligence, the right hon. and learned Gentleman will understand that there are limits to how far I can go; but, as he raises the point, and as someone has—without, I believe, regard to due process—released something to The Times, the House is entitled to know that at no stage over the past months was any intelligence passed to Ministers or officials that suggested a breach of the arms embargo.
Ms Diane Abbott: Does the Foreign Secretary agree that no Labour Member needs lectures in ethics from the Tories?
The Foreign Secretary will be aware that the Foreign Affairs Select Committee, of which I am a member, met this morning, and agreed to ask the Minister of State for a memorandum detailing exactly how he misled the Committee last Tuesday. We also agreed to ask the Foreign Office for copies of all telegrams between the Foreign Office and Sierra Leone since this affair began. Does the Foreign Secretary agree that there are issues of substance here, as it can be no part of an ethical foreign policy to connive at the use of mercenaries and gun runners and the types of strategy that have subjected Africa to so much misery down the years?
Mr. Cook: Let me remind my hon. Friend what I said just now when I read the letter from President Kabbah. If anyone is in a position to know whether Sandline was active in Sierra Leone on his behalf, it is President Kabbah himself, and he made it quite clear that there was no mercenary involvement in the restoration of his Government.
My hon. Friend the Minister of State himself established that he had not given full information to the Select Committee. It was he who drew that to my attention, and it was he who requested me to include that passage in my statement to the House last week. He did so, and was right to do so, precisely because he wanted the record put right at the first available opportunity. He will, of course, respond with the full memorandum to which my hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott) referred.
In respect of the request for telegrams, I must say that they are restricted in circulation. I fully understand what prompted my hon. Friend to ask her question, but, if we worked on the principle that telegrams might subsequently be published, we would receive much less information than we do at present—[Interruption.] Any hon. Member who has served in the Foreign Office, or seen the telegrams, will fully understand why they contain matter that might be embarrassing to Her Majesty's Government or others if it were made publicly available.
I can assure the Select Committee that we will give it the fullest possible co-operation. I look forward to discussing with it the report of the investigation, once it has been held.
Mr. Peter Brooke: Why did the Minister of State not verify in the middle of April whether the Foreign Secretary knew what was happening?
Mr. Cook: The Minister of State saw a number of papers—three or four—all of which indicated that a
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customs inquiry was proceeding, and said with robust confidence that there had been no official approval of Sandline's activities. There was therefore no ground for apprehension or concern on the part of the Minister of State. It was not until the lawyers' letter of 24 April that either of us was fully aware of the allegations being made by Sandline. I am confident that, with the passage of time and investigation, those allegations will be seen to be quite different from what actually happened.
Mr. Ted Rowlands: My right hon. Friend referred several times to reviewing the papers. From his review, has he satisfied himself at least that no official gave any encouragement to Sandline's activities?
Mr. Cook: First, it is indeed the case that Sandline, before President Kabbah was deposed in the original coup, was a company—[Interruption.]—if the hon. Gentleman will allow me—it was a company which had extensive interests in Sierra Leone. It was indeed known among officials that Sandline had a continuing relationship with President Kabbah, and had an interest in Sierra Leone. After all, a sister company is managing the diamond mines there. It is a big player in that context in Sierra Leone. I see nothing improper in officials having dialogue with it.
In answer to my hon. Friend's question, having looked through the papers in front of me, I give a quite firm and categorical answer. No official in the Africa department did anything to condone or encourage any breach of the arms embargo.
Sir Teddy Taylor: Is a record kept of the alleged meetings between officials of the Foreign Secretary's Department and other Departments and the arms exporters? Will the public be told what those meetings were about? Does the Secretary of State agree that it would be a worry if officials had such discussions about exports without telling him? Does he accept that this is not the first occasion on which the Foreign Office has had discussions about the export of arms to other countries in breach of sanctions, and has covered itself by giving a warning letter that on no account must it be done?
Mr. Cook: Of course, if there were meetings of officials of the Foreign Office and officials of other Ministries, there would be records of those meetings. That is in the nature of the civil service. If there are such records, they can become part of the investigation, but I have to disabuse the hon. Gentleman of his line of inquiry.
The fact is that no licence was given for export of arms to Sierra Leone by Sandline or by anybody else. I therefore at the present time do not know, and have never heard of, a meeting to discuss an application for an export of arms by Sandline to Sierra Leone or anyone else; quite the reverse. Far from the implication of the hon. Member's question, the evidence that I have in front of me suggests that officials at no stage condoned or encouraged the export of arms to Sierra Leone.
Mr. Dennis Skinner: Is my right hon. Friend aware that, notwithstanding all his protestations in defence of his officials at the Foreign Office, some of us, especially me, cynic though I may be, do not accept,

161
and never will, that, in the course of what I described last week as the Opposition trying to make a seven-course dinner of a pan of boiling water, some of the high-flying diplomats challenged by him when he assumed office, having worked for the tawdry Government who are now in opposition, did not take it upon themselves to take action to undermine him and anyone else? I happen to believe that. It has happened in the past.
Fortunately, my right hon. Friend was able today to show that he is a master of his brief, as he did when he read the Scott report in three hours a few years ago and flattened the Government of the day. That is unlike the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), the "man of the night", as he was aptly described by the right hon. Member for Maidstone and the Weald (Miss Widdecombe). My right hon. Friend today gave him enough rope, and he has hung himself.
Mr. Cook: My hon. Friend's remarks on the officials of the Foreign Office were noted in the Foreign Office, not to universal approbation. While I entirely understand his point, I have never at any stage while I have been Secretary of State detected resistance to a policy, or any act of conspiracy against it, at any level within the Foreign Office. I think that officials have been treated unfairly over the past weekend. [HON. MEMBERS: "By you."] No, not by me. I have never at any stage recycled the allegations as proven fact. I have repeatedly said that they were allegations that should be taken seriously, but, in fairness to those officials, I do think that the Opposition should stop rushing to judgment, and await the forthcoming full and considered investigation.
Sir Peter Emery: Does the right hon. Gentleman accept that it is most unusual for the Foreign Office to ask for an inquiry by Customs and Excise, a Department that does not report to him; that to ask for such an inquiry to be made without the instruction of a Minister is nearly beyond belief; and that then to suggest that the inquiry will not be referred to a Minister until six weeks later seems even more a matter of imagination? Does he actually suggest that the inquiry would not and should not have been referred to a Minister before it was instituted?
Mr. Cook: I said to the House last week that I do think that the Minister of State, when he was coming to address a debate in the House on 12 March, should have been informed of the inquiry, and I do not resile from what I said then. However, I depart from the right hon. Member on his central thesis. Customs is the statutory body responsible for investigating breaches of export orders, so it is entirely proper that customs should have been made the investigator of any alleged breach.
As to consulting Ministers before doing it, on that I have to say that I think officials acted entirely properly in what they did. The moment they suspected that a breach might have occurred, they were under a duty as citizens, never mind as civil servants, to draw it to the attention of the appropriate criminal investigation organisation.
It would have been quite improper to ask Ministers' opinion as to whether a suspected breach should be referred—to have asked for a political decision before referring the matter onward. That is why I am actually
162
very pleased that the Foreign Office is able to say, "We initiated this investigation—we did not attempt a cover-up, and we have since co-operated fully and openly with customs." That is what I would have expected of my officials.
Dr. Norman A. Godman: I said on BBC Radio Scotland yesterday that the Labour party does not need lessons in ethical conduct from the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) or the odd job lot behind him—members of what we in Scotland now call the English rural party. I reminded my listeners of the Pergau dam affair and the Iraqi arms affair, neither of which led to the resignations of any Conservative so-called hon. Gentlemen. That is the point of this affair, and of this private notice question.
I hope that my right hon. Friend the Secretary of State will give us open access to the report and a full debate on it when it is published; and that he does not put the same constraints on examination of the report as were put on him in respect of the Scott report.
Mr. Cook: I am happy to give the right hon. and learned Member for Folkestone and Hythe an undertaking that he will have more than three hours in which to read the report before we debate it. I can also give my hon. Friend the Member for Greenock and Inverclyde (Dr. Godman) an assurance that we shall of course publish the report, and I fully expect that the House will wish to discuss it when it is available. As to his later remarks, my hon. Friend the Member for Bolsover (Mr. Skinner) referred earlier to the speech of the right hon. Member for Maidstone and The Weald (Miss Widdecombe), in which, the House will recall, the right hon. Lady detailed three occasions on which the right hon. and learned Member for Folkestone and Hythe misled this House knowingly.
Mr. Roger Gale: Will the right hon. Gentleman give my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) the undertakings he sought? Will the inquiry be conducted by a judge, and will it be conducted in public?
Mr. Cook: At the present time, we are still identifying who may head it up, but I can give an absolute assurance that it will be somebody with impeccable legal qualifications, because those will be required. Secondly, I have been repeatedly pressed by the House to produce an investigation that will report to the House at an early date. I have told the House that we shall be seeking to make sure that the procedures for that are consistent with speed, so that the House can have the facts, and officials can have the truth out in the open.
Mr. Hugh Bayley: Last week, I spent two days in west Africa at a conference about good governance and human rights, at which there were Members of Parliament and officials of five African nations and several Latin American nations. Representatives of many donor nations, including the United States and France, also attended. Not one delegate mentioned to me British policy on Sierra Leone. Does my right hon. Friend agree that people at that conference in Africa had the issue much better in proportion than Opposition Members do?
Mr. Cook: The people of Sierra Leone have found rather incomprehensible much of what they have read in

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British newspapers and heard from the British Parliament in the past few days. As far as they are concerned, they have restored their legitimate and elected Government and seen the back of a brutal and repressive military regime, which is an entirely positive outcome for them. Of course, if there are allegations of a breach and allegations against officials, it is important that the facts should be out in the open. We have nothing to hide, and we want to have the truth out in the open. In Africa, as my hon. Friend pointed out, and elsewhere, the disproportionate attention given to this issue is regarded with incredulity.
Mr. Crispin Blunt: The Foreign Secretary told us earlier that it would be wholly improper if the Foreign and Commonwealth Office caused the Customs and Excise investigation to be delayed. On 29 April, the day after the Foreign Secretary became aware of the letter from Sandline International's solicitor, Customs and Excise delayed indefinitely an arranged interview with Colonel Spicer under caution, pending further investigations. Was that a coincidence?
Mr. Cook: I do not know what the hon. Gentleman is seeking to suggest, but I know that he does not have the guts to say it baldly and directly—he comes at it from a tangent. If he repeats outside the House any suggestion—[HON. MEMBERS: "Oh."] If hon. Members will be quiet, I will answer. If he repeats outside the House any suggestion that I have improperly—[Interruption.] Please. If hon. Members have finished, I will continue. If the hon. Gentleman repeats outside the House any suggestion that I have improperly intervened in the customs investigation, I will sue, because it is totally untrue.
Mr. Ernie Ross: As one of two hon. Members who visited HMS Cornwall when she returned from her patrol in that area and were briefed by the commander and the crew, I can tell my right hon. Friend that they were absolutely overjoyed at the work that they could do in rebuilding clinics and taking aid to the people of Sierra Leone. They were proud that they were able to take part in that exercise. I support my right hon. Friend in ensuring that he maintains his present position of supporting his officials and Foreign Office Ministers, so that people outside the House can see the difference between the Government and the Conservative party, whether in government or opposition.
Mr. Cook: I am grateful to my hon. Friend for his remarks. I particularly underline the fact that the House ought to express its appreciation of what was done by HMS Cornwall and all those who served on her at that time.
The hon. Member for Portsmouth, South (Mr. Hancock) asked about the pictures that were taken. They were taken in the third week of March, long after the Customs and Excise investigation had commenced. HMS Cornwall has done nothing improper in this matter, and much of which the House can be proud.
Mr. Tim Collins: Does the Foreign Secretary have absolute confidence in the Minister of State, who has been looking extremely miserable this afternoon? Does he agree that, if the Minister of State is forced to resign over this matter, his own position will also be untenable?
Mr. Cook: Of course I have full confidence in my hon. Friend the Minister of State, who, like everybody else in
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this matter, has had to put up with wild allegations being reported as fact. If my hon. Friend is looking in any way unenthusiastic about this exchange, I can only put it down to the fact that he is frustrated at being unable to answer the questions himself, to put right his name, and to make it perfectly plain that there is nothing to hide among Ministers or officials.
Dr. Nick Palmer: Does my right hon. Friend agree that it is rather sad that our dwindling Opposition are reduced to recycling press releases from the lawyers of a company suspected of criminal activity? Does he accept that, despite the further sneering attack on his ethical foreign policy by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), my constituents, who take an interest in foreign policy, are very enthusiastic about the attempt to achieve such a policy? They realise that it will lead to controversy and that it will be difficult, but they honour the Government for trying it, and they recognise that the previous Government pursued an unethical foreign policy.
Mr. Cook: I am grateful to my hon. Friend for his remarks. Another point that Opposition Members keep refusing to face is that, in many parts of the world, our support for values of human rights, civil liberties and democracy has gained Britain respect. As the Foreign Minister of the Czech Republic put it to me, "If your entire history is about being the victim of foreign policy realpolitik, you respect a Government who are prepared to follow foreign policy on the basis of principle."
Mr. Eric Forth (Bromley and Chislehurst): What was the earliest date at which the planned military intervention in Sierra Leone was known in the Foreign Office, and at what official or ministerial level?
Mr. Cook: Sixth February, and it was known to all those who received the telegrams.
Mr. Bill Rammell: Is it not clear that Conservative Members' strategy, both now and in recent days, is to draw similarities between this issue and the arms to Iraq affair and, in the process, try to gain sustenance for the impression that all politicians are as bad as they are? Not one proven fact has been advanced today to justify the lurid allegations that the Opposition have made.
Does the Secretary of State agree that, when it comes to arms sales, there will be allegations of this sort from time to time? In terms of good government, it is crucial that there be openness, and that the Government are willing and able to submit to independent scrutiny in order to get at the facts. That is what we are doing, and it is what the Conservative party singularly failed to do on arms to Iraq.
Mr. Cook: There are three main differences between the arms to Iraq affair and this matter. The first is that the arms to Iraq affair began with a policy decision taken by Ministers in secret to relax the guidelines. Secondly, it was followed through by ministerial decisions to authorise licences for the export of the machine tools. Thirdly, that was followed by an elaborate cover-up rather than a release of the facts—which went to the extent of even suppressing documents from a court case.

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There could not be a starker contrast with our conduct of this issue: there has been no policy change, no ministerial approval and no attempt at a cover-up. We are anxious that the public should know the full facts that we know, which are very different from the facts being peddled to the public.
Mr. Andrew Tyrie: Can the Foreign Secretary confirm that he initials all the papers he sees?
Mr. Cook: I can confirm that what happens with all papers I see is that I tick them if they are put there for noting. If they are put there for approval, I write "OK" on them. No papers are returned to my office without writing on them of any character. I have read some really weird and absurd claims in the press in the past two or three days. I do go through my red boxes, I do read what is in my red boxes, and I do tick all those that I have read. That is understood by my officials. I assure the hon. Gentleman that, at no stage, in any of those boxes or files, were there any data on a breach of the arms embargo before 28 April.
Mr. Kevin McNamara: Is my right hon. Friend aware that many of us who have, through our cities, particular relations with Sierra Leone—as my city of Hull does with Freetown—were grateful and glad when democracy was restored to that country? The harrowing tales that we heard from that unhappy country during the period of despotic tyranny caused great concern, and the non-governmental organisations and other organisations involved were grateful that democratic government was restored to Sierra Leone.
Has my right hon. Friend noticed that four words have not been used at all in the cross-examination of him today, which I think merit some consideration? Those words are "public interest immunity certificates". What on earth has happened to them?
Mr. Cook: I must admit that I am rather enjoying the cross-examination, because, the more it goes on, the more empty the Opposition's case becomes. My hon. Friend draws attention to one reason why Opposition Members cannot get off the back foot: it is because their back foot is so mired in the mud of the last Government. As I said to the House last week, one of my first reactions when I heard of the lawyers' letter was to make it plain that I was not prepared to sign any public interest immunity certificate in this matter. I want the full facts to be out, and I want any court case to be fair.
Mr. Howard: The Foreign Secretary has today been dancing to his master's voice. What was "very serious and grave" last week is now apparently "receiving disproportionate attention". He failed to answer the questions of which I had given him notice earlier today. Will he now tell the House who was on the distribution list of the document received on 6 February, to which he referred in answer to my right hon. Friend the Member for
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Bromley and Chislehurst (Mr. Forth), and will he finally answer the question that he has scrupulously avoided: will the inquiry that he has promised be carried out by a High Court judge and in public, following the precedent set by his own Government with the Phillips inquiry?
Mr. Cook: The documents of 6 February were telegrams, and those telegrams would be widely circulated. [Interruption.] Of course they would be. Telegrams are always widely circulated. They detailed the intervention in Sierra Leone by the military observers group of the Economic Community of West African States—ECOMOG—and the overthrow of the military junta there. As President Kabbah has pointed out, that was a military intervention by the west African forces; it was not a military intervention by any mercenary force.
I have some sympathy with the right hon. and learned Gentleman. He has been looking forward to this event throughout the past two days. Every radio broadcast today promised that there would be an hour on the rack for me here this afternoon. I must say that this has been quite a pleasant interlude from the work that I have to do at the Foreign Office. If the right hon. and learned Gentleman wants to do it again, I shall be happy to come back and repeat it.
Hon. Members: On a point of order, Madam Speaker.
Madam Speaker: Order. I seem to be getting points of order from hon. Members who are rather frustrated, so I hope that they are genuine points of order. I shall start with Mr. Winnick's.
Mr. Winnick: We have freedom of expression in the House, which is fortunate for all of us, but you, Madam Speaker, like your predecessors, have always said that we should be careful how we exercise that freedom of speech. The hon. Member for Reigate (Mr. Blunt) implied the gravest form of misconduct by the Foreign Secretary. My right hon. Friend responded by saying that, if those accusations had been made outside the House, he would sue. Is there not an obligation on the hon. Member for Reigate to reflect on what he said, and, if he considers that it was inappropriate, to apologise?
Hon. Members: Hear, hear.
Madam Speaker: Order. As I feared, these are not matters for me. The point of order seems to be an extension of the statement and questions on it. I see that the hon. Member for Reigate (Mr. Blunt) is rising. He may wish to say something.
Mr. Blunt: I will be happy to put the question in a detailed form outside the House, if that is what the Foreign Secretary wishes.
Mr. Bayley: On a related point of order, Madam Speaker.
Madam Speaker: I have dealt with the matter.

Points of Order
4.22 pm
Mr. Jonathan Sayeed: On a point of order arising out of Foreign Office questions, Madam Speaker. I suggested during questions to the Minister of State, Foreign and Commonwealth Office, the hon. Member for Leeds, Central (Mr. Fatchett), that General Motors had considered withdrawing its support for Vauxhall in Luton, and that one reason given was the high value of the pound. The Minister said that my question was based on a false hypothesis, and he therefore would not answer it.
As many Labour Members know, what I said to the Minister about the withdrawal of support by General Motors was correct. I have the briefing paper from Vauxhall, which states that one of the reasons is the high value of the pound. I suggest that inadvertently the Minister misled the House.
Madam Speaker: That is an interesting situation and one that concerns the hon. Member's constituency. He might like to apply to me for an Adjournment debate, in which he can develop that theme and get a full response from the Minister concerned.
Sir Peter Emery: It has always been the tradition in procedure that interventions after a statement are put in the interrogative, as a question. We seem to be sliding away from that, with statements being made, not put in the interrogative, and often not even with a question at the end. Will you, Madam Speaker, reinforce the fact that hon. Members have been here long enough to learn that, according to the tradition of the House, questions must be questions, not just statements?
Madam Speaker: The right hon. Gentleman is absolutely correct. He will know, as do many other hon. Members, that I often call Members to order because of the comments they make. It happens too in the case of hon. Members who are leading on an issue for their party. May I suggest—I think that it is a good suggestion—that the party Whips should give seminars to some of their Back Benchers and take them through some of our procedures? If I had the time, there is nothing that I should like more than to put on my mortarboard and give hon. Members lessons in how to proceed in the Chamber.

Rural and Community Hospitals
4.24 pm
Mr. David Prior: I beg to move,
That leave be given to bring in a Bill to establish procedures to place restrictions on the closure of rural and community hospitals.
I represent a rural constituency with many elderly, retired people. Public transport is not readily available, and the general hospital is a good 40 miles away for many people. There are five community hospitals in north Norfolk, a pattern reflected across the United Kingdom.
Over the years, many community hospitals have been chopped and changed, many have closed, others have been threatened with closure and then reprieved, and wards have been closed. The fortunes of those hospitals have yo-yoed with the annual financial settlement. There has been no long-term security or strategic plan.
In funding terms, community hospitals have been the Cinderella of the health service, relying on financial support from countless leagues of friends, appeal committees and supporters. They have been squeezed by the high-profile and expensive march of new technology in acute hospitals. The sword of Damocles has always hovered above them.
That is no way to run such a vital local service; no way to treat dedicated nurses and frail, and sometimes terminally ill, patients. The public have no confidence in the impartiality or correctness of the decision-making process. Matters have reached such a stage that one chairman of a cottage hospital told me that, if the health authority spent money on a hospital, it was a sure sign that it would try to close it in a year or two. Another said that a consultation was a cosmetic exercise—a case of, "We've written the minutes, now let's have the meeting."
There have been many debates in the House about community hospitals, usually prompted by a particular closure. Today is an opportunity to look at community hospitals in a less emotional setting.
The United Kingdom has 457 community hospitals. Many are approaching their centenary, and many of the war memorial hospitals had their origins in the great war. No two hospitals are the same; they have evolved to meet local patient needs. Most commonly, they allow patients to recover from traumatic surgery and to receive medical treatment near their homes. There is clear evidence, anecdotal and otherwise, that people recover more quickly in small, friendly local hospitals.
Perhaps most important, especially in an area such as north Norfolk, local hospitals have developed a special expertise in treating elderly people. That has led to a growing requirement to provide respite and palliative care for the terminally ill. The increasing number of older people, especially those who are frail or who have mental health needs, require a service sensitive to their needs and preferences. Evidence shows that older people are less likely to be disoriented if cared for at home or close to home, particularly by staff with whom they are already familiar and by their local GP.
The fact that community hospitals are so well supported by the community means that literally thousands of volunteers provide help. Taking time to listen and to talk to ill, old and sometimes lonely people can make a huge difference. During the next 10 years, the Government predict an increase of about 100,000 people over the age

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of 85, many of whom will need the services of their local hospitals and their community pharmacists. That massive local support, part of the moral capital of the NHS, will evaporate if the hospitals are closed.
By contrast, the big acute hospitals are organised primarily for major surgery. They employ highly specialised people, and are hugely expensive. It is essential to move patients out as quickly as possible. The community hospital is the logical halfway house between acute hospitals and home. They can also be used to manage winter pressures and the pressures of rising emergency admissions.
To summarise, community hospitals meet essential patient and clinical needs. They have massive public support, and fulfil a vital role between the large district hospitals and care at home. So it was that I welcomed a number of statements in the Government's White Paper called "The New NHS". They commit themselves to real, not synthetic, consultation, and to three, five, even 10-year funding agreements to give greater stability to NHS trusts. They also commit themselves to allowing local doctors and nurses, who best understand patient needs, to shape local services.
The Government specifically commit themselves to community hospitals in the White Paper, which states:
"Too often in the past, Community Hospitals have been sidelined."
Those are fine words, but, as they say in Norfolk, "Fine words butter no parsnips." Community hospitals from Cornwall to Wales, from the midlands to East Anglia, are under threat. Community hospital associations believe that at least 16 are threatened with closure. To bridge the gap between political rhetoric and platitudes and what is happening on the ground, I bring the Bill before the House. It is not fair to raise expectations without providing the wherewithal to achieve them.
The broad objective of my Bill is to make it much harder to close community hospitals, by introducing safeguards. First, there should be a presumption, albeit rebuttable, in favour of community hospitals remaining open. For the health authority, there must be a clear burden of proof to show that there is no longer patient or clinical need for the hospital. It would not be sufficient justification to suggest a lack of short-term financial resource.
Secondly, the obligation on the health authority to consult openly and seriously should be entrenched. Consultation must include not only community health councils, but everyone directly involved in primary health care, including doctors, nurses, health visitors and the like, as well as the public.
Thirdly, an independent panel should review the decision of the health authority and the assumptions and the reasoning behind the proposed closure. Specifically, it would consider bed utilisation and management objectively, and satisfy the public that the figures had not been cooked and bed occupation artificially lowered to support the case for closure. It would not take into account short-term financial considerations. An independent panel would restore public confidence in the decision-making process.
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A proposed closure would have to have the seal of approval from the Secretary of State. In practice, he would overrule the independent body only if there were an overriding political imperative. However, the decision should have democratic legitimacy.
Those measures would make it more difficult, but not impossible, to close community hospitals. Some will close in response to changing patient needs, demography or technology, but at least those measures would make closure more acceptable to the public, and better understood. The Government would have to make available funds to support the health authority's strategic plan. No hospital should close because of a short-term funding gap.
The Bill puts down a marker to the Government. Community hospitals are a vital part of the health service. They have widespread public support and must be given a long-term future. There must be no more closures until proper safeguards have been put in place.
Question put and agreed to.
Bill ordered to be brought in by Mr. David Prior, Mrs. Gillian Shephard, Mr. John MacGregor, Mr. Keith Simpson, Dr. Ian Gibson, Mr. Christopher Fraser, Mr. Richard Spring, Mr. Damian Green, Mr. James Gray, Mr. Tim Loughton, Mr. John Bercow and Mr. Shaun Woodward.

Rural and Community Hospitals
  RURAL AND COMMUNITY HOSPITALS
  Mr. David Prior accordingly presented a Bill to establish procedures to place restrictions on the closure of rural and community hospitals: And the same was read the First time; and ordered to be read a Second time on Friday 3 July, and to be printed [Bill 186].

SCOTLAND BILL (PROGRAMME)
Motion made, and Question put forthwith, pursuant to Standing Order No. 82 (Business Committee),
That the further Report [11th May] from the Business Committee be now considered.—[Mr. McFall.]
Question agreed to.
Resolved,
That this House doth agree with the Committee in its Resolution.—[Mr. McFall.]
Following is the report of the Business Committee [11 May]:
That the Resolution of the Committee reported to the House on 5th May be varied so that—

(a) the second and third days allotted under the Order (13th January) to proceedings on Consideration and Third Reading shall be allotted in the manner shown in the Table set out below, and

(b) each part of the proceedings shall, if not previously brought to a conclusion, be brought to a conclusion (in accordance with the Order, as amended on 30th April) on the expiry of the allotted period (calculated from the commencement of proceedings on the Bill) specified in the third column of the Table.

TABLE

Allotted day

Proceedings

Allotted period

Second day

New Clause 2 and New Clause 4

45 minutes

New Clause 12 and New Clause 15

1 hour 30 minutes

New Clause 17

2 hours

New Clause 18

2 hours 30 minutes

Orders of the Day

  Scotland Bill
  [2ND ALLOTTED DAY]
  As amended (in the Committee), further considered.

  Scotland Bill
    New clause 2

      CORRUPTION OR MALADMINISTRATION IN LOCAL GOVERNMENT
      '.—(1) The Parliament shall make provision for the investigation of relevant complaints made to its members in respect of instances of corruption or maladministration in a Scottish Unitary or Island Authority.

      (2) For the purposes of subsection (1), a complaint is a relevant complaint if it is a complaint which, if it were made of a local authority in England or Wales, could be investigated by the Audit Commission.

      (3) "Scottish Unitary Authority" and "Scottish Island Authority" mean local authorities established under the Local Government etc. (Scotland) Act 1994.'.—[Dr. Fox.]

      Brought up, and read the First time.
      4.34 pm
      Dr. Liam Fox: I beg to move, That the clause be read a Second time.
      New clause 2 would provide scrutiny and accountability in the Scottish Parliament. The debate that we have had in the past hour shows why proper scrutiny and accountability are required. The new clause relates to corruption and maladministration in local government, which should concern all those involved in local government in Scotland. There has been a litany of accusations of maladministration in parts of local government in Scotland, and we have tabled the new clause because of the failure of internal scrutiny.
      It is not long since the Secretary of State and his colleagues arrived in Paisley to deal with allegations of scandal and corruption and the other problems afflicting the local Labour party. The headlines in the compliant Scottish press at the time referred to them as sleaze busters. We were told that they were going to sort the problems out once and for all, and that no stone would be left unturned. Now—a considerable time later—one inquiry has been completed and then ditched, and a separate inquiry is having to be held for which the House will have no locus, because it has not been set up by us although the matter is of great concern to us.
      The failure of internal regulation in Paisley is a good example of why the Scottish Parliament should have some powers over local government in Scotland. The relationship between local government in Scotland and the Scottish Parliament will be extremely important.
      Inquiries have been held into local government maladministration. The Labour party attempted such an inquiry in Glasgow. It was something of a kangaroo court and the charges were never made public. It ultimately collapsed because Millbank could not understand Scottish law, or at least that was the excuse. It was a complete farce and did party politics no good. If we want politics to be held in high regard, we must ensure that everything is above board. After the low turnout at the local government elections in England last week, all the political parties were talking about the need to explain the importance of local government and to foster a spirit of

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      civic responsibility. Any inquiry into the behaviour of those who take part in local government should be fair and public. Those are important aspects of natural justice.
      Mr. Tam Dalyell: I am puzzled. The hon. Gentleman asserts—it is only an assertion—that the Scottish Parliament should have some powers over local government. What powers? In particular, what powers does he think Holyrood should have that Westminster at present does not have?
      Dr. Fox: The new clause refers to complaints that, if they occurred in England, would be investigated by the Audit Commission. That is what the clause seeks to introduce for Scotland. There have been a number of scandals and allegations involving local government in Scotland that have given rise to great public disquiet. The Labour Opposition of the time told us that the Monklands problem was an isolated example. Glasgow was another isolated example, as were Govan and Paisley. When we join up the dots it becomes a large isolated example, because it involves the whole of the west of Scotland. We should be concerned about that.
      Mr. Dennis Canavan: The hon. Gentleman did not mention Tory-controlled Westminster council. Is he proposing that the Scottish Parliament should have investigatory powers similar to those in England and Wales that exposed the disgusting scandal of Tory-controlled Westminster council?
      Dr. Fox: The new clause would give powers to the equivalent of the Audit Commission, and I hope that the hon. Gentleman will support it. He will, of course, be aware that the remit of the Bill does not extend to Westminster council, so I shall ignore his remarks.
      What occurred in Paisley shows best of all why these powers are needed. The Government may find it inconvenient that I bring up this party political subject, but questions remain unanswered. Such events have a negative impact on places such as Paisley. It is wrong for Paisley to get a bad name because of the Labour party's failure to deal with allegations. The people of Paisley dislike the way in which the town has become synonymous with problems in the conduct of local government. That is unfair, and there should be a clear mechanism of scrutiny. We still do not know what is going on in Paisley. The Government have not come up with a clear method of dealing with the allegations about the way that local government in Paisley was conducted. An hon. Member who was respected and liked in all parts of the House committed suicide and another hon. Member has been under suspension by his party for some time and is not representing his constituents in the House. There is no reassurance for the general public, and we need a mechanism that will reassure them. Matters must be above board so that those in local government know that they will be dealt with fairly. There must be proper public scrutiny.
      Dr. Norman A. Godman: I should perhaps declare an interest. My wife is a councillor in the west of Scotland and she is a remarkably honourable woman. I have to say that because she is bigger than me.
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      The new clause is disgraceful. It plainly shows that Scotland is slipping away from the grasp of the Conservative party, what I call the English rural party. The United Kingdom as a unitary state is slipping away from it, and the new clause is an absurd attempt to bring some order to what should be done in Scotland. My hon. Friend the Member for Falkirk, West (Mr. Canavan) asked about Westminster council and the hon. Member for Woodspring (Dr. Fox) said that that had nothing to do with Scotland. He was right in the context of the Bill, but we must not forget the face of corruption.
      I suppose that at a moment like this I should murmur de mortuis nil nisi bonum in respect of the late Reginald Maudling, Mr. Poulson and Mr. Pottinger. I am tempted to repeat that for the benefit of the hon. Member for Banff and Buchan (Mr. Salmond), who is not a Latin scholar. Those three gentlemen and, I seem to recall, a Labour Member and Labour representatives from the north-east of England were involved in scandalous affairs. Corruption was a feature of much of Conservative public life.
      Mr. Alasdair Morgan: Does not the hon. Gentleman agree that, as local government is a devolved matter under the Bill, there is nothing in it to preclude a Scottish Parliament from investigating local authorities that are suspected of corruption? Irrespective of which party forms the Administration, I am sure that the new Parliament will be quick to do that.
      Dr. Godman: The hon. Gentleman makes a fair intervention. Of course his party will not command a majority in the new Parliament. It will be up to Members of the Scottish Parliament to engage in negotiations with representatives of local authorities to develop some kind of system to tackle corruption in councils. That applies to all parties, although Scottish councils are not led by Conservatives and perhaps never will be unless there is some system of proportional representation for local government. Even then Conservative control is unlikely. It is right to seek to drive corruption, cronyism and nepotism from our councils. That applies to Conservative councils here in the deep south, where the Westminster scandal is still fresh in our minds, as much as it applies to the occasional Labour councillor who goes adrift.
      The hon. Member for Woodspring spoke about Paisley, but I could not figure out what he was talking about. He referred to the late Gordon McMaster, who was an hon. Member and a good friend of mine. He was utterly innocent of any charge, as I am sure the hon. Gentleman would concede. He also referred to a neighbouring constituency but he made little reference to the council whose headquarters are in Paisley and whose meetings were recently described rather graphically by a senior police officer as somewhat lively—livelier than some Paisley pubs on a Saturday night. I place the blame for that unbecoming conduct fairly and squarely on the Scottish National party. It has nothing to do with Labour, with Councillor Hugh Henry and the fine people who sit behind him, but the independents and some of the SNP councillors leave a little to be desired.
      Dr. Fox: The belief that everybody but members of the Labour party is responsible for the problems in local government in Paisley leaves a credibility gap. The hon.

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      Gentleman described the new clause as deplorable. It seeks only to give to Scotland the same power of scrutiny as is held by the Audit Commission in England. Why should the people of Scotland have less power than people in England to scrutinise local government?
      4.45 pm
      Dr. Godman: I agree with the hon. Member for Galloway and Upper Nithsdale (Mr. Morgan). If there are to be regulations about the authority of our Edinburgh Parliament to scrutinise and perhaps discipline errant councillors, it must be based on genuine consultation in Scotland, not consultation in this place. It must take account of consultations not just with local authorities but with community councils. They were not mentioned by the hon. Member for Woodspring. How many community councils are there in Paisley or in Inverclyde and elsewhere? Consultations should involve representatives of the Edinburgh Parliament and civic society. What about business and trade union interests and those of voluntary organisations which have to work closely with local authorities? They should all be engaged in negotiations about the formulation of such powers.
      Mr. Alex Salmond: I did not want to interrupt the hon. Gentleman's flow a few moments ago when he suggested that the problems in Renfrew council related to conduct at council meetings. In fairness, the hon. Gentleman might recall FCB Securities and the allegations about the activities of council-originated companies that were made by a Labour Member. Does the hon. Gentleman concede that there is a great deal more to Renfrew politics than the conduct at a few council meetings?
      Dr. Godman: I readily concede that point, which the hon. Gentleman makes in a fair-minded way. In formulating policies to help needy communities, Strathclyde regional council in some cases gave too much unfettered authority to groups that had been set up throughout the region, and problems were created. That council did a fair job of looking after people in need, especially in my constituency and in Glasgow and Paisley. However, mistakes were made, and I am perfectly happy to accept the suggestion by the hon. Member for Galloway and Upper Nithsdale that a Scottish Parliament, after genuine consultation with civic society, could come up with a system to regulate the conduct of councillors. The overwhelming majority of such representatives have integrity. They play a fair game and are dead straight and honourable, and they should not have the new clause imposed upon them. Such measures must come from Edinburgh.
      Change is needed in our local authorities. I advocate proportional representation, and I have long argued for it. There is to be electoral reform for the European Parliament, the Scottish Parliament and the Northern Ireland assembly—if we get the result that we all hope for in about 10 days. Local government should be based on proportional representation. This may not make me very popular with a certain councillor whom I meet occasionally, but in Glasgow we have a massive number of Labour councillors and a very small opposition. That is not right. The same holds for south of the border. The Conservative party used to have massive majorities down
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      here in the deep south and that is wrong. Speaking as a democratic socialist, I believe that that is wrong. We need electoral reform.
      I prefer the additional member system. That is the fairest system of proportional representation, but we should not have councils where those in power occupy 70 seats and those in opposition occupy fewer than a dozen seats. That is not right. It will not happen in our Parliament. We will even have—we may have—four or five Conservative representatives in that Parliament, if they are lucky.
      Subsection (1) of the new clause states:
      "The Parliament shall make provision".
      I might have been a little happier with it if it had said "may make provision". That has to be done by the people of Scotland and their representatives. The hon. Member for Woodspring equates this with the Audit Commission, not with Parliament. Again, that is unacceptable.
      If we are going to talk about elected representatives determining these things north of the border, should we not talk about elected representatives south of the border having the same power? Again, why Scotland? Why not Northern Ireland? Why not Wales? The hon. Member for Woodspring is going to say, "Of course, we are debating the Scotland Bill," but he does not make even a passing reference to the scandals that overtook Westminster and indeed other Conservative oligarchies down here. That is why I am so opposed to the new clause.
      By all means, let us have change in local government. Let us demand the highest standards of conduct from our representatives at all levels, including at the level of this multinational state Parliament, but let us not focus just on local authority representatives, with them not having any say in the sort of system that is developed.
      Mr. Salmond: As usual, that was for the most part a fair-minded speech from the hon. Member for Greenock and Inverclyde (Dr. Godman). I follow that by making a few points briefly.
      I am suspicious of clauses, arguments or indeed recent proposals from the Secretary of State for Scotland saying that the solution to manifest problems in local government is to impose structures from above. I am not against having a sleaze buster or some form of administration, overseeing authority or commission—most people are not against that—but that is not the way in which we should be examining these particular problems. We should be examining democratic structures in councils, so that those are healthy and enable a vibrant democratic exchange to take place in councils where it does not take place at present.
      As some hon. Members will know, I come from West Lothian. I am a Lithgae lad. I am a black bitch, which confirms the thoughts of a few Labour Members and what they think about me. Among other things, West Lothian council—I see the hon. Member for Linlithgow (Mr. Dalyell) in his place—has benefited from the substantial number of changes in administration that it has had over the past 20 years or so. I believe—and I am trying to be fair-minded about this, although I am not saying that I would not prefer the Scottish National party to be in administration all the time—that both Labour and the SNP have keen kept on their toes in that council because they have had a substantial opposition force, which was ready and able to take over at the next election if the electorate so decided.

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      We should consider that structure and that model in examining councils throughout Scotland. That is why the reference by the hon. Member for Greenock and Inverclyde to proportional representation is more important than this new clause, the Government's sleaze buster or any other factor. We should provide methods of ensuring a vibrant democratic opposition and a balance of forces within councils, so that some of the malpractice that we have undoubtedly seen in certain Scottish Labour councils does not become the norm rather than the exception.
      It would be useful if we also examined this matter in terms of moving to full-time councillors. The Conservative party often argues that there is a risk in Scotland of people becoming overgoverned. I was looking at some figures recently. Scotland has fewer elected representatives per head of population, even allowing for the 129 who are going into the new Parliament, than any other country in western Europe. Incidentally, we have substantially fewer than England because of the new single-tier structure in Scottish local authorities. It is not a case of cutting the number of councillors in Scotland. There is a substantial case for having decent remuneration for the councillors we do have in a simple form, relying on a salary as opposed to augmented expenses.
      That would be fairer and more democratic. It would allow a wider pool of people to move into Scottish local authorities and, again, would be a generic way in which to tackle these problems, instead of assuming that the solution is to prescribe and to impose from above.
      I was interested to read in The Herald last week that the Labour party was appointing a sleaze finder to scrutinise—I see the Minister of State laughing—the work of the SNP throughout Scotland, so that Labour could fling some mud at the SNP, instead of all the mud being thrown at the Labour party. The SNP is by no means perfect—I would never make that claim—and no party is, but it would take a fair amount of brass neck for anyone in the Labour party hierarchy to believe that that might be a fruitful area of exchange in the run-up to the Scottish parliamentary elections. It might find that more ammunition was coming in its direction than in that of the SNP.
      The serious point that I want to make is this. I hope that the debate that we conduct over the next year looks at democratic structures, instead of negative allegations between political parties. We would do the Scottish Parliament and Scottish local government a substantial service if the argument about cleaning up Scottish local government in certain councils—not the majority; corruption is not the norm—concentrated far more on how to achieve vibrant, democratic structures. As we are introducing a vibrant, democratic structure for the nation, we should be thinking of introducing the same thing in local authorities throughout Scotland.
      Mr. Dalyell: I agree with the hon. Member for Banff and Buchan (Mr. Salmond) that it should be local government that sorts itself out and that it should not be sorted out from any Parliament, either Holyrood or Westminster, but I am astonished at some of the other things that have been said. I do not make a party point here. Incidentally, I leap to the defence of the late
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      Reginald Maudling. There were two sides to that story and I recall only that, for Scotland, he was one of the most helpful Chancellors of the Exchequer whom I ever went to.
      As a doctor, let alone a politician, the hon. Member for Woodspring (Dr. Fox) should be extremely careful in his references to the late Gordon McMaster and suicide notes because the truth is that, as he will know—I will put it this way—Gordon McMaster, who was a friend of mine, as he was of my hon. Friend the Member for Greenock and Inverclyde (Dr. Godman), said that he had been a fool when he was a lecturer in gardening at Langside college not to go along with the strict regulations on the handling of pesticides. As we know, pesticides are organophosphates and, as research is proving, organophosphates and organophosphate poisoning can do very odd things to the human mind, so we should be extremely careful about using that example.
      Dr. Fox: I am sure that the hon. Gentleman will recognise that that, with all due respect, is not the issue here. The issue is the failure of internal regulation within the Labour party in Scotland to come to conclusions as to what happened and the wider issues relating to Paisley.
      Mr. Dalyell: It was the hon. Gentleman who raised the subject and, frankly, I thought that to make that or any other point was uncalled for. Anyhow, what are we doing spending time on this when we should be discussing new clause 4, which deals with expenditure on reserved matters? If there is not time to deal with new clause 4, Mr. Deputy Speaker, would it be out of order for me at least to ask the Minister to give a Government explanation of the answer to—
      Mr. Deputy Speaker (Mr. Michael Lord): Order. Yes, it would be out of order for the hon. Gentleman to try to do that.
      Mr. Dalyell: For Parliament to spend this time talking about corruption rather than the vital issues in new clause 4 is an absolute disgrace.
      Mr. Deputy Speaker: Before I call the next speaker, I should like to make the point to the House that all of today's debate is programmed and carefully timed. It is up to hon. Members on both sides of the House to decide how they spend that time.
      Mr. Donald Gorrie: I support the hon. Members for Greenock and Inverclyde (Dr. Godman) and for Banff and Buchan (Mr. Salmond) in their enthusiastic comments on proportional representation, which I think would make a very considerable contribution in sorting out corruption and misbehaviour in councils. I also agree with the intervention by the hon. Member for Galloway and Upper Nithsdale (Mr. Morgan), who pointed out that the Scottish Parliament will have complete control over local government. New clause 2 is therefore unnecessary, as the Scottish Parliament will be able to do what it wishes in regulating local government without it.
      5 pm
      I should like to make only one point to the Minister: the approach taken in new clause 2—which is undoubtedly well intentioned—is wrong in suggesting

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      that the Scottish Parliament should have to establish its own inquiry into complaints made to it. I realise—from a small involvement, at second hand, in recent events in my own area—that a council may, as a council, establish an inquiry, which will be conducted by an official. Subsequently, the party involved in the inquiry may feel that it also must have an inquiry. The police may then feel that they, too, must conduct an inquiry. Ultimately, all the inquiries may become snarled up with one another. Therefore, if the Scottish Parliament is required to conduct yet another inquiry, the situation may become even worse.
      I think that, in collaboration with local government and police, the Scottish Parliament will have to establish a sensible method of investigating allegations of corruption, so that we do not have one inquiry after another. Unfortunately, so far, such a series of inquiries has led to nothing being done about the allegations that have been made in Scotland.
      I therefore plead that the Scottish Parliament does not replicate what others are doing, but co-operates with others to ensure that one thorough inquiry is conducted. After such an inquiry, action should be taken—rather than no action, as currently happens.
      Mr. Malcolm Chisholm: Although my speech will be very brief, I feel that I must very briefly mention the fact that the hon. Member for Woodspring (Dr. Fox) delivered his entire speech and seemed not to be aware of the Government's proposals on local government corruption and maladministration. I realise that the issue is difficult for Conservative Members, as they have no hon. Members representing constituencies in Scotland.
      In April, the Government issued a consultation paper entitled "A New Ethical Framework for Local Government in Scotland", which deals with precisely the type of matters with which we are all concerned. In the paper, the Government have gone further than the Nolan committee's recommendations, to make it absolutely clear that we are determined to take a very tough line on any maladministration or corruption in local government.
      In case Opposition Front Benchers are unaware of it, the Government are proposing that serious allegations of misconduct should be considered by a new national standards commission for Scotland, led by a Scottish standards commissioner. In his reply, the hon. Member for Woodspring should at least tell the House the Opposition's thoughts on that proposal, which seems to be the correct way of proceeding on a very important matter.
      Mr. Desmond Swayne: I should like to remind the hon. Member for Edinburgh, North and Leith (Mr. Chisholm) that we are debating the Scotland Bill, and that—although it is all very well for the Government to have proposals and to be considering them—we are considering mechanisms that may be included in the Bill. Therefore—in the absence in the Bill of the Government's proposals, which the hon. Gentleman described—it is perfectly proper for hon. Members to attempt to include such necessary provisions in the Bill.
      I differ from the hon. Member for Linlithgow (Mr. Dalyell) in his analysis of this debate, as I believe that the matters with which we have been dealing are particularly important.
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      My analysis differs very significantly from those of the hon. Members for Banff and Buchan (Mr. Salmond), for Greenock and Inverclyde (Dr. Godman) and for Edinburgh, West (Mr. Gorrie), all of whom seemed to take the position that we should not find remedies to problems which clearly must be dealt with—Conservative Members have tabled new clause 2 to do so—but tackle what they regard as the fundamental institutional problem giving rise to the phenomenon of corruption that we have identified. The hon. Gentlemen think that if we work on the democratic and institutional structures, the problems will go away. As a solution, they have offered us a form of proportional representation, several forms of which they have discussed.
      Proportional representation would make the problem worse. It is highly likely that proportional representation will lead to semi-permanent coalitions that will entrench administrations—just as administrations have become entrenched in certain parts of the central belt.
      Mr. Dalyell: I had better speak on this for myself and not for my colleagues. If people are going to level charges of corruption at other men and women, the place to do it is a court of law. It is either put up—in a court of law—or shut up.
      Mr. Swayne: I beg to differ with the hon. Gentleman. The fact is that the perception among newspapers and the public has been of a number of cases of what, in the previous Parliament, Labour Members themselves characterised as "sleaze". It is entirely proper for hon. Members—when considering a Bill that will hand to the Scottish Parliament responsibility for local government—to consider procedures to deal with that phenomenon. Such consideration prejudges nothing about cases that have been mentioned, and I have made absolutely no accusations about any specific council. However, it is entirely proper that the public mind should be put at rest by passing a provision, such as new clause 2, to deal with the matter.
      Mr. Salmond: What was the public perception of this place in the previous Parliament?
      Mr. Swayne: My suspicion—which was confirmed by my own knocking on doors—is that the public's perception of the reputation of this place remains considerably higher than their perception of the reputation of individual hon. Members. Many hon. Members would therefore do well to improve our conduct, so that we live up to the standard of the institution in which we take part.
      It is entirely proper for us to consider new clause 2, which is designed to include in the Bill a mechanism to investigate the allegations that have been drawn to our attention. The new clause would provide the Scottish Parliament with a powerful investigatory mechanism.
      Mr. Alasdair Morgan: I feel as though I have to express my own thoughts—also, I suspect, the thoughts of many other hon. Members—in having to deal with a succession of totally specious and spurious amendments and new clauses, which have been tabled only to give the official Opposition an opportunity to score some political points. The amendments and new clauses—especially new clause 2—will add nothing to the Parliament's powers, but will merely give it yet another instruction, which is so

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      patronising. Although we want to give a Parliament to the Scottish people, we seem to feel that we have to tell them what they must do with that Parliament. We are saying, "Using these powers, you will do such-and-such; using those powers, you will do something else."
      The Conservative party is very fond of criticising the Government for running a nanny state and for constantly telling the public what to do. However, Conservative Members want the Westminster Parliament to be a nanny Parliament, always telling the Scottish Parliament what to do. The Scottish people will not stand for it.
      The Minister for Home Affairs and Devolution, Scottish Office (Mr. Henry McLeish): I agree with almost every hon. Member speaking in this debate on one point: we should take the issue seriously. I hope that there is no serious dispute between hon. Members, first, about the need for the highest standards of conduct at any level of government; secondly, on the matter of effective and efficient scrutiny; and, thirdly—I agree with the hon. Member for Banff and Buchan (Mr. Salmond)—that we want open and transparent structures in both the Parliament and local government. The culture will have to change, and such structures will be the best way of ensuring that it does.
      I hope that hon. Members agree also that, in any forum, the best method of discipline is self-discipline. Those who participate in democratic life should always be aware of circumstances and of their obligations, not only to one another, but to the communities that they represent.
      The new clause adds nothing to the quality of what the Parliament will be able to do. It is narrow and unnecessary. The Bill places a duty on the Parliament to make provision for the investigation of relevant complaints of maladministration made to its Members. It does not place a duty on the Parliament to investigate complaints about maladministration or corruption in local government—but that does not preclude the Parliament from making provision about such matters.
      It is important to stress that we have in Scotland the Accounts Commission, which will investigate complaints of financial impropriety, and the Commissioner for Local Administration in Scotland, who will investigate complaints of maladministration. Criminal corruption will continue to be a matter for the police. The powers and duties of the Secretary of State in relation to the commissioner and the Accounts Commission will transfer to the Scottish Executive.
      By tabling new clause 2, the Conservatives are trying to impose a duty on the Scottish Parliament to make provision for the investigation of complaints of corruption or maladministration in a Scottish local authority. The Government do not think that that is necessary. Provision is already made for the investigation of complaints by the Accounts Commission or the local government ombudsman, depending on the nature of the complaint. In addition, the Government have just published proposals to strengthen further the ethical framework for local government, which has been alluded to in the debate.
      The new clause would have the perverse effect of requiring investigation only of the very limited subset of complaints about financial impropriety, which, in England and Wales, falls within the remit of the Audit
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      Commission. I hope that it comes as no surprise to Opposition Front Benchers that the Audit Commission does not operate in Scotland.
      Dr. Fox indicated assent.
      Mr. McLeish: The hon. Gentleman has confirmed that the Opposition know that. It is therefore interesting that their new clause makes no reference to the Accounts Commission and refers only to the Audit Commission, which is germane only to England and Wales.
      Dr. Fox: Obviously, the Minister did not either listen to my remarks or read the new clause, which states that a complaint is relevant
      "if it is a complaint which, if it were made of a local authority in England or Wales, could be investigated by the Audit Commission."
      It clearly draws a distinction between England and Wales and Scotland.
      Mr. McLeish: I rest my case. It is obvious that a new clause or an amendment to the Government of Wales Bill may have to be changed for the Scotland Bill. I think that hon. Members will agree that the issue of local government conduct stretches more widely than the narrow remit of the Audit Commission.
      Mr. Salmond: I think that I heard the Minister make a very serious allegation. Is he saying that the Conservative party is so short of people and researchers that it is economising by tabling the same amendment to different Bills? That surely cannot be so.
      Mr. McLeish: I will not entertain the hon. Gentleman on this issue any further. I shall just leave a little thought in hon. Members' minds.
      The Government are very serious about ensuring that there is a robust ethical framework for local government conduct. Following the Nolan committee's report on local government conduct in July 1997, we have been giving a great deal of thought to how to secure the highest standards of conduct in local government. We have published proposals that go much further even than Lord Nolan's committee recommended in ensuring swift and authoritative independent investigation of allegations of misconduct against councillors.
      We believe that a stronger ethical framework for local government is needed if the instances where local government conduct appears to fall short are not to undermine people's confidence in local democracy. Once we have consulted on our proposals, we intend to look for an opportunity to legislate to bring into effect a new ethical framework.
      In the meantime, we do not see a need for the specific measure proposed by Conservative Front Benchers. Nor do we believe that we should legislate piecemeal for the creation of a new ethical framework for local government. We think that the Bill gives the Parliament the desired flexibility to make arrangements for the investigation of complaints against other bodies. In view of that, I urge the hon. Member for Woodspring (Dr. Fox) to withdraw the motion.
      Dr. Fox: The entire point of considering the Bill is to delineate the responsibilities that the Scottish Parliament

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      should and should not have. It is therefore quite legitimate for us to circumscribe its investigative powers in any one area. I therefore disagree with the hon. Member for Galloway and Upper Nithsdale (Mr. Morgan).
      I am not entirely clear about the Government's objection to the new clause. The Minister began by saying that many of the powers of investigation into local government maladministration are sufficient, but then said that the Government had to introduce a new ethical code and new powers. I cannot see why, if the Government plan to go much further, they will not accept the new clause.
      The perception among voters in Scotland will be that the matter concerns the development of a cosy relationship and a lack of scrutiny. Those who read the Scottish press and follow local government events in Scotland will know that there is a great deal of disquiet among the public. Although some of it may not be correct, it deserves to be taken seriously—I agree with the Minister on that.
      I must disagree with the Minister that the provision is unnecessary and that it is not legitimate for the House to try to impose a responsibility on the Scottish Parliament to take the issue seriously at the soonest point. We should remember that the Secretary of State has told us that the Parliament should be up and running six months sooner than we expected—long before the Government's White Paper proposals are enshrined in legislation, even if they can cram them into their legislative programme at the earliest opportunity, which is likely to be three years down the road.
      For that reason, I have no intention of withdrawing the motion. We shall press it to a Division.
      Question put, That the clause be read a Second time:—
      The House divided: Ayes 132, Noes 323.

      Division No. 270]

      [5.14 pm

      AYES

      Ainsworth, Peter (E Surrey)

      Curry, Rt Hon David

      Amess, David

      Davies, Quentin (Grantham)

      Ancram, Rt Hon Michael

      Davis, Rt Hon David (Haltemprice)

      Arbuthnot, James

      Day, Stephen

      Atkinson, Peter (Hexham)

      Dorrell, Rt Hon Stephen

      Baldry, Tony

      Duncan, Alan

      Bercow, John

      Duncan Smith, Iain

      Beresford, Sir Paul

      Faber, David

      Blunt, Crispin

      Fallon, Michael

      Body, Sir Richard

      Flight, Howard

      Boswell, Tim

      Forth, Rt Hon Eric

      Bottomley, Peter (Worthing W)

      Fox, Dr Liam

      Bottomley, Rt Hon Mrs Virginia

      Fraser, Christopher

      Brady, Graham

      Gale, Roger

      Brazier, Julian

      Garnier, Edward

      Brooke, Rt Hon Peter

      Gibb, Nick

      Browning, Mrs Angela

      Gillan, Mrs Cheryl

      Bruce, Ian (S Dorset)

      Goodlad, Rt Hon Sir Alastair

      Burns, Simon

      Gorman, Mrs Teresa

      Butterfill, John

      Green, Damian

      Cash, William

      Greenway, John

      Chope, Christopher

      Grieve, Dominic

      Clappison, James

      Gummer, Rt Hon John

      Clark, Rt Hon Alan (Kensington)

      Hague, Rt Hon William

      Clarke, Rt Hon Kenneth (Rushcliffe)

      Hammond, Philip

      Hawkins, Nick

      Clifton-Brown, Geoffrey

      Hayes, John

      Collins, Tim

      Heathcoat-Amory, Rt Hon David

      Cormack, Sir Patrick

      Horam, John

      Cran, James

      Howard, Rt Hon Michael

      184

      Howarth, Gerald (Aldershot)

      Robertson, Laurence (Tewk'b'ry)

      Hunter, Andrew

      Roe, Mrs Marion (Broxbourne)

      Jack, Rt Hon Michael

      Rowe, Andrew (Faversham)

      Jackson, Robert (Wantage)

      Ruffley, David

      Jenkin, Bernard

      St Aubyn, Nick

      Johnson Smith, Rt Hon Sir Geoffrey

      Sayeed, Jonathan

      Simpson, Keith (Mid-Norfolk)

      King, Rt Hon Tom (Bridgwater)

      Soames, Nicholas

      Kirkbride, Miss Julie

      Spelman, Mrs Caroline

      Laing, Mrs Eleanor

      Spicer, Sir Michael

      Lait, Mrs Jacqui

      Spring, Richard

      Leigh, Edward

      Stanley, Rt Hon Sir John

      Letwin, Oliver

      Steen, Anthony

      Lewis, Dr Julian (New Forest E)

      Streeter, Gary.

      Lidington, David

      Swayne, Desmond

      Lilley, Rt Hon Peter

      Syms, Robert

      Lloyd, Rt Hon Sir Peter (Fareham)

      Tapsell, Sir Peter

      Loughton, Tim

      Taylor, Ian (Esher & Walton)

      Luff, Peter

      Taylor, John M (Solihull)

      MacGregor, Rt Hon John

      Taylor, Sir Teddy

      Maclean, Rt Hon David

      Tredinnick, David

      McLoughlin, Patrick

      Trend, Michael

      Malins, Humfrey

      Tyrie, Andrew

      Maples, John

      Viggers, Peter

      Mates, Michael

      Waterson, Nigel

      Maude, Rt Hon Francis

      Wells, Bowen

      May, Mrs Theresa

      Whitney, Sir Raymond

      Moss, Malcolm

      Whittingdale, John

      Nicholls, Patrick

      Widdecombe, Rt Hon Miss Ann

      Norman, Archie

      Wilkinson, John

      Ottaway, Richard

      Willetts, David

      Page, Richard

      Winterton, Mrs Ann (Congleton)

      Paice, James

      Winterton, Nicholas (Macclesfield)

      Paterson, Owen

      Woodward, Shaun

      Pickles, Eric

      Yeo, Tim

      Prior, David

      Young, Rt Hon Sir George

      Randall, John

      Tellers for the Ayes:

      Redwood, Rt Hon John

      Mr. Oliver Heald and

      Robathan. Andrew

      Sir David Madel.

      NOES

      Ainger, Nick

      Burgon, Colin

      Ainsworth, Robert (Cov'try NE)

      Burstow, Paul

      Allan, Richard

      Butler, Mrs Christine

      Allen, Graham

      Byers, Stephen

      Anderson, Donald (Swansea E)

      Cable, Dr Vincent

      Anderson, Janet (Rossendale)

      Campbell, Alan (Tynemouth)

      Armstrong, Ms Hilary

      Campbell, Mrs Anne (C'bridge)

      Ashton, Joe

      Campbell-Savours, Dale

      Atherton, Ms Candy

      Canavan, Dennis

      Atkins, Charlotte

      Caplin, Ivor

      Baker, Norman

      Casale, Roger

      Ballard, Mrs Jackie

      Cawsey, Ian

      Barnes, Harry

      Chapman, Ben (Wirral S)

      Barron, Kevin

      Chaytor, David

      Bayley, Hugh

      Chisholm, Malcolm

      Beard, Nigel

      Clapham, Michael

      Beckett, Rt Hon Mrs Margaret

      Clark, Rt Hon Dr David (S Shields)

      Begg, Miss Anne

      Clark, Paul (Gillingham)

      Beith, Rt Hon A J

      Clarke, Charles (Norwich S)

      Benn, Rt Hon Tony

      Clarke, Tony (Northampton S)

      Bennett, Andrew F

      Clelland, David

      Benton, Joe

      Clwyd, Ann

      Best, Harold

      Coffey, Ms Ann

      Betts, Clive

      Cohen, Harry

      Blears, Ms Hazel

      Coleman, Iain

      Blizzard, Bob

      Connarty, Michael

      Borrow, David

      Corbett, Robin

      Bradshaw, Ben

      Corbyn, Jeremy

      Brake, Tom

      Corston, Ms Jean

      Brinton, Mrs Helen

      Cotter, Brian

      Brown, Rt Hon Nick (Newcastle E)

      Crausby, David

      Browne, Desmond

      Cryer, Mrs Ann (Keighley)

      Buck, Ms Karen

      Cryer, John (Hornchurch)

      Burden, Richard

      Cummings, John

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      Cunliffe, Lawrence

      Humble, Mrs Joan

      Cunningham, Jim (Cov'try S)

      Hurst, Alan

      Cunningham, Ms Roseanna (Perth)

      Hutton, John

      Iddon, Dr Brian

      Dafis, Cynog

      Jenkins, Brian

      Dalyell, Tam

      Johnson, Alan (Hull W & Hessle)

      Darvill, Keith

      Jones, Barry (Alyn & Deeside)

      Davey, Edward (Kingston)

      Jones, leuan Wyn (Ynys Môn)

      Davey, Valerie (Bristol W)

      Jones, Ms Jenny (Wolverh'ton SW)

      Davidson, Ian

      Davies, Rt Hon Denzil (Llanelli)

      Jones, Jon Owen (Cardiff C)

      Davies, Geraint (Croydon C)

      Jones, Dr Lynne (Selly Oak)

      Dean, Mrs Janet

      Jones, Martyn (Clwyd S)

      Dismore, Andrew

      Keeble, Ms Sally

      Dobbin, Jim

      Keen, Alan (Feltham & Heston)

      Doran, Frank

      Keetch, Paul

      Dowd, Jim

      Kennedy, Charles (Ross Skye)

      Drew, David

      Kennedy, Jane (Wavertree)

      Dunwoody, Mrs Gwyneth

      Khabra, Piara S

      Eagle, Maria (L'pool Garston)

      Kidney, David

      Efford, Clive

      Kilfoyle, Peter

      Ellman, Mrs Louise

      King, Andy (Rugby & Kenilworth)

      Ennis, Jeff

      King, Ms Oona (Bethnal Green)

      Etherington, Bill

      Kingham, Ms Tess

      Ewing, Mrs Margaret

      Kirkwood, Archy

      Fearn, Ronnie

      Ladyman, Dr Stephen

      Field, Rt Hon Frank

      Laxton, Bob

      Fitzpatrick, Jim

      Leslie, Christopher

      Fitzsimons, Loma

      Levitt, Tom

      Flint, Caroline

      Lewis, Ivan (Bury S)

      Flynn, Paul

      Lewis, Terry (Worsley)

      Follett, Barbara

      Linton, Martin

      Foster, Don (Bath)

      Livingstone, Ken

      Foster, Michael Jabez (Hastings)

      Livsey, Richard

      Galbraith, Sam

      Lloyd, Tony (Manchester C)

      Galloway, George

      Lock, David

      Gapes, Mike

      Love, Andrew

      Gardiner, Barry

      McAvoy, Thomas

      George, Andrew (St Ives)

      McCabe, Steve

      George, Bruce (Walsall S)

      McCafferty, Ms Chris

      Gerrard, Neil

      McCartney, Ian (Makerfield)

      Gibson, Dr Ian

      McDonagh, Siobhain

      Gilroy, Mrs Linda

      McDonnell, John

      Godman, Dr Norman A

      McFall,John

      Godsiff, Roger

      McGuire, Mrs Anne

      Goggins, Paul

      McIsaac, Shona

      Golding, Mrs Llin

      Mackinlay, Andrew

      Gordon, Mrs Eileen

      McLeish, Henry

      Gorrie, Donald

      Maclennan, Rt Hon Robert

      Griffiths, Jane (Reading E)

      McNamara, Kevin

      Griffiths, Nigel (Edinburgh S)

      Mactaggart, Fiona

      Griffiths, Win (Bridgend)

      McWalter, Tony

      Grocott, Bruce

      McWilliam, John

      Grogan, John

      Mahon, Mrs Alice

      Hain, Peter

      Mallaber, Judy

      Hall, Patrick (Bedford)

      Marshall, David (Shettleston)

      Hamilton, Fabian (Leeds NE)

      Marshall, Jim (Leicester S)

      Hancock, Mike

      Martlew, Eric

      Hanson, David

      Meacher, Rt Hon Michael

      Harman, Rt Hon Ms Harriet

      Meale, Alan

      Harvey, Nick

      Michael, Alun

      Heal, Mrs Sylvia

      Michie, Bill (Shef'ld Heeley)

      Healey, John

      Michie, Mrs Ray (Argyll & Bute)

      Henderson, Ivan (Harwich)

      Milburn, Alan

      Heppell, John

      Moffatt, Laura

      Hewitt, Ms Patricia

      Moonie, Dr Lewis

      Hill, Keith

      Moran, Ms Margaret

      Hodge, Ms Margaret

      Morgan, Alasdair (Galloway)

      Hoey, Kate

      Morgan, Ms Julie (Cardiff N)

      Hood, Jimmy

      Mudie, George

      Hoon, Geoffrey

      Mullin, Chris

      Hope, Phil

      Murphy, Denis (Wansbeck)

      Hopkins, Kelvin

      Norris, Dan

      Howarth, Alan (Newport E)

      Oaten, Mark

      Howarth, George (Knowsley N)

      O'Brien, Bill (Normanton)

      Hughes, Ms Beverley (Stretford)

      O'Brien, Mike (N Warks)

      186

      Olner, Bill

      Stewart, Ian (Eccles)

      Organ, Mrs Diana

      Stinchcombe, Paul

      Palmer, Dr Nick

      Stott, Roger

      Pearson, Ian

      Straw, Rt Hon Jack

      Pendry, Tom

      Stringer, Graham

      Perham, Ms Linda

      Stuart, Ms Gisela

      Pickthall, Colin

      Stunell, Andrew

      Pike, Peter L

      Sutcliffe, Gerry

      Pollard, Kerry

      Swinney, John

      Pope, Greg

      Taylor, Rt Hon Mrs Ann (Dewsbury)

      Pound, Stephen

      Powell, Sir Raymond

      Taylor, David (NW Leics)

      Prentice, Gordon (Pendle)

      Taylor, Matthew (Truro)

      Primarolo, Dawn

      Temple-Morris, Peter

      Prosser, Gwyn

      Thomas, Gareth (Clwyd W)

      Purchase, Ken

      Thomas, Gareth R (Harrow W)

      Quin, Ms Joyce

      Timms, Stephen

      Quinn, Lawrie

      Tipping, Paddy

      Radice, Giles

      Todd, Mark

      Rammell, Bill

      Tonge, Dr Jenny

      Rapson, Syd

      Touhig, Don

      Raynsford, Nick

      Truswell, Paul

      Reed, Andrew (Loughborough)

      Turner, Dennis (Wolverh'ton SE)

      Reid, Dr John (Hamilton N)

      Turner, Dr Desmond (Kemptown)

      Rendel, David

      Turner, Dr George (NW Norfolk)

      Roche, Mrs Barbara

      Twigg, Derek (Halton)

      Rooker, Jeff

      Twigg, Stephen (Enfield)

      Rooney, Terry

      Tyler, Paul

      Ross, Ernie (Dundee W)

      Vaz, Keith

      Rowlands, Ted

      Wallace, James

      Ruane, Chris

      Walley, Ms Joan

      Ruddock, Ms Joan

      Ward, Ms Claire

      Russell, Bob (Colchester)

      Wareing, Robert N

      Russell, Ms Christine (Chester)

      Watts, David

      Ryan, Ms Joan

      Welsh, Andrew

      Salmond, Alex

      White, Brian

      Salter, Martin

      Whitehead, Dr Alan

      Sanders, Adrian

      Wicks, Malcolm

      Sawford, Phil

      Wigley, Rt Hon Dafydd

      Sedgemore, Brian

      Williams, Rt Hon Alan (Swansea W)

      Shaw, Jonathan

      Sheerman, Barry

      Williams, Alan W (E Carmarthen)

      Sheldon, Rt Hon Robert

      Williams, Mrs Betty (Conwy)

      Simpson, Alan (Nottingham S)

      Willis, Phil

      Singh, Marsha

      Winnick, David

      Skinner, Dennis

      Winterton, Ms Rosie (Doncaster C)

      Smith, Angela (Basildon)

      Wood, Mike

      Smith, John (Glamorgan)

      Woolas, Phil

      Smith, Llew (Blaenau Gwent)

      Wray, James

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

      Wright, Anthony D (Gt Yarmouth)

      Snape, Peter

      Wright, Dr Tony (Cannock)

      Soley, Clive

      Wyatt, Derek

      Starkey, Dr Phyllis

      Tellers for the Noes:

      Stevenson, George

      Mr. Kevin Hughes and

      Stewart, David (Inverness E)

      Ms Bridget Prentice.

      Question accordingly negatived.

    New clause 12

      CONCORDATS
      '.—(1) Any concordat relating to—

      (a) the procedures to be followed when issues relating to devolved matters are to be discussed at meetings of the Council of Ministers or made the subject of discussions with or representations to the European Commission, or

      (b) the implementation of the provisions of Parts 3 and 4 of this Act and any other financial dealings between the Treasury and Ministers of the Crown and the Scottish Parliament or the Scottish Executive

      shall not come into effect until it has been—

      (i) approved by the Parliament;

      (ii) approved by a resolution passed by the House of Commons;

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      (iii) signed by a member of the Scottish Executive, and

      (iv) signed by a Minister of the Crown.

      (2) In this section "concordat" means any agreement between a Minister of the Crown and the Scottish Executive regarding the consultation arrangements and common United Kingdom guidelines in respect of:—

      (a) any reserved matter under Schedule 5,

      (b) any devolved matter under section 29(4),

      (c) any transfer of ministerial functions under section 49,

      (d) any functions exercisable by agreement under section 51,

      (e) any shared power under section 52,

      (f) any cross—border public body under sections 83, 84 and 85, and

      (g) any agency arrangements under section 87.'. —[Mr. Ancram.]

      Brought up, and read the First time.
      Mr. Michael Ancram: I beg to move, That the clause be read a Second time.
      This is not the first time we have addressed this issue. We had a lengthy general debate on concordats on 31 March, and I do not intend to rehearse all the arguments made then. The new clause—which I hope to introduce briefly—has been tabled in all seriousness, in an attempt to meet some of the points made during that debate.
      As the House knows, my concern about concordats is that they are designed, either intentionally or unintentionally, to avoid the legislative process. Like executive agreements in America, they are designed to avoid scrutiny; the scrutiny of this House. It is evident from the paper on concordats—which the Government most helpfully put in the Library—that they will not come before this House. They will be made public; there is no question of their being confidential unless there are reasons for confidentiality. However, they are informal agreements which will not be legally enforceable, and they will not be subject to the scrutiny of this House or of the Scottish Parliament. I mention the Scottish Parliament because, when I made the point during the last debate—[Interruption.]
      Mr. Deputy Speaker: Order. The hon. Member for Glasgow, Kelvin (Mr. Galloway) is standing and holding a conversation. He and others must listen to the debate.
      Mr. Ancram: I realise that I do not come from the middle east, Mr. Deputy Speaker, but I hope that the hon. Member for Glasgow, Kelvin (Mr. Galloway) will listen to the case that I am making.
      I was accused of skewing the earlier debate on concordats when I said that concordats should come before this House and this Parliament. I was asked why they should not come before the Scottish Parliament. That was a valid point.
      It was also said that many of the concordats would relate to relatively unimportant issues, such as organisational matters concerning the relationships between Departments. However, the concordats will be of great importance in a number of areas, most obviously in the representation of Scotland at the Council of Ministers—indeed, although we are debating concordats in relation to the Scotland Bill, the same case could be made in relation to the devolution proposals for Wales.
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      When we debated the White Paper assurance that Ministers from the Scottish Executive could represent the interests of Scotland and the United Kingdom in the Council of Ministers, we were told that that would be organised by concordat—it did not need to be specified in the Bill. Indeed, I was given to understand that some of the concordats were being drafted—although obviously they cannot become effective until the Scottish Parliament and Executive are established. I questioned the wisdom of leaving a matter as crucial as Scotland's voice in Europe to informal arrangements, especially as the concordats will not be legally enforceable and as, according to the paper that was placed in the Library, they will usually be signed by officials.
      5.30 pm
      On Europe, and on resource and taxation matters covered by parts III and IV, agreements that are reached by what in law we might call back-letters but what in the Bill are called concordats—they are not specified, but are in the background—should be scrutinised by both the Westminster and Scottish Parliaments. Both Parliaments will have a strong interest in such matters, so I see no reason why they should not be able to scrutinise and approve the concordats—unless, that is, the UK and Scottish Administrations do not want them to be able to do so.
      I make no major point about this, but I have been concerned throughout our deliberations at the fact that many of the agreements will be signed by officials, not by Ministers. The affairs of the past few days have suggested that it is always better for Ministers to be aware of what their officials are discussing and agreeing. It is important that Ministers are involved in issues of such grave importance as the resourcing of Scotland after devolution, and Scotland's voice at the Council of Ministers.
      The new clause would ensure that any concordats relating to devolved matters that are raised at the Council of Ministers—or to matters that are raised under parts III of IV of the Bill—would not come into effect until the Scottish Parliament and the House of Commons had approved them, and that they would have to be signed by a member of the Scottish Executive and a Minister of the Crown. I tabled the proposal with some anticipation and optimism. When I moved an equivalent but much more broadly based amendment, the Liberal Democrats made it clear that they would have found it acceptable—in relation to Wales, at least—if I had also specified the Welsh assembly, and I think that I was told the same in relation to the Scottish Parliament. I have genuinely tried to make the new clause constructive and important.
      Mr. James Wallace: The right hon. Gentleman may be about to clarify this, but I want to ensure that I fully understand what he is saying. The list of consultation arrangements that could be defined as concordats under subsection (2) seems to cover more than matters discussed at the Council of Ministers or Treasury and tax-varying powers. Would the new clause apply to all concordats, or only to those relating to the Council of Ministers and taxation?
      Mr. Ancram: The latter. Subsection (2) simply defines what the concordats would need to contain to trigger the

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      provision. The same interest would not apply for issues raised before the Council of Ministers that did not relate to devolved matters. I have tried to ensure that the new clause would actively work in the interests not only of Scotland but of the Scottish Parliament and the House of Commons. It would ensure that no major decisions were taken without being scrutinised by those who were elected to scrutinise them.
      Mr. Dalyell: Given the scarcity of time, may I put my contribution in the form of five questions? First, how will the concordats be enforced? Secondly, will they be justiciable in courts? Thirdly, how will they be litigated on—indeed, will it be possible to litigate on them? Fourthly, how will concordats on matters such as investment problems, which are only too real—these questions are not hypothetical—be sorted out? Fifthly, will not the whole process depend on amiability and amicability? One would like to assume that there will be amiability and amicability, but, alas, that is not always the case. Finally, I should like—before you bong me out of order, Mr. Deputy Speaker—to express regret that new clause 4, which deals with expenditure on reserved matters, was not discussed.
      Mr. John Swinney: I find myself in the altogether surprising position of having some sympathy with the new clause—no doubt the right hon. Member for Devizes (Mr. Ancram) will be equally surprised. Throughout consideration of the Bill, Scottish National party Members have expressed unease about concordats. In being asked to endorse the Bill, we are being asked to take at face value other documents—no one seems to be sure of their status—but are being offered no process through which to scrutinise them. I have seen drafts of concordats on inward investment and on agriculture and fisheries matters—such concordats are being developed in the corridors of power.
      Following our previous discussions about concordats, I tabled a number of parliamentary questions to various Departments. I discovered that the Foreign and Commonwealth Office, the Ministry of Defence, the Ministry of Agriculture, Fisheries and Food, the Department for Education and Employment, the Department of the Environment, Transport and the Regions and the Department of Trade and Industry have all discussed the need for concordats on matters that they would deal with in relation to Westminster and the Scottish Parliament. We have seen what purport to be draft copies of the concordats on inward investment and on agriculture, but what status will documents from any of the other Departments have?
      The memo on the agriculture concordat states:
      "From the MAFF perspective, the concordat is a chance to emphasise their lead UK role and to keep tabs on action by the Scottish Executive. From our perspective"—
      that is, the perspective of the Scottish Office—
      "it is a chance to keep open the access to the European policy process and to decisions which have to be made at UK level while limiting MAFF interference in Scottish Executive business."
      That memo, from a civil servant to a Minister, strikes at the nub of the question of how influential the Scottish Parliament will be in European deliberations. How far will Scottish Parliament lobbying and intervention on
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      agriculture—which is fundamental to my constituency—be compromised by the constraints applied by the concordats?
      We are being asked to approve certain arrangements in relation to Scottish representation in Europe that I do not find especially satisfactory and against which my hon. Friend the Member for Moray (Mrs. Ewing) has argued, and now some doubts are being introduced about those arrangements and the nature of the concordats.
      Mr. Ancram: The hon. Gentleman was talking about the constraints of the concordats. What worries me about the concordats is that there are no constraints, in that they are not enforceable. Important rights between the Parliaments could be agreed by a concordat that turned out not to be worth the paper it was written on. That is why I want them to come before the House and the Scottish Parliament for approval.
      Mr. Swinney: I may say something of more comfort to the right hon. Gentleman later on about the status of the documents and the process of enforceability.
      I seek specific assurances on when the concordats are to come into force and what their status will be. A memo to Ministers from a Scottish Office civil servant on the timing of implementation says:
      "it is clear that concordats will not come fully into operation until the devolved administration is up and running. However, we"—
      presumably, the Scottish Office and the Ministry of Agriculture, Fisheries and Food—
      "see considerable advantage in getting the groundwork established well before then and, indeed, operating a period of shadow-running … We are therefore aiming with MAFF to get the concordat in more or less final form in order to allow a decent period of shadow-running."
      I find that rather bewildering. Here we are, 12 months before the elections to the Scottish Parliament—we have absolutely no idea who will form its Administration—and issues about the development of the concordat are running apace.
      The memo contradicts parliamentary answers that I have received, which I find disturbing. The Secretary of State for Defence replied to a written answer:
      "In most cases, these discussions are in their early stages in the light of the fact that such agreements cannot be finalised until the Scottish Parliament and the Scottish Executive are established. Parliament will be kept informed of progress on these matters."— [Official Report, 28 January 1998; Vol. 305, c. 245–46.]
      A civil servant argues that we can have shadow running with an imaginary Administration, because there is so much doubt about who will be in the driving seat, but Ministers say that the concordats will have no status until the Scottish Executive has signed up to them.
      Can we be confident that the powers to be granted to the Scottish Parliament and Executive will in no way be eroded by a Whitehall fix that gets the concordats in place at an early stage? Will there be shadow running, or can we have a guarantee that the development of the concordats will be left until the Scottish Parliament and Executive are up and running? I cannot imagine a Scottish Executive wanting to find that the boys from Whitehall have stitched up most of the details and left it with a fait accompli. That would be an appalling start to the Scottish Parliament's work. Some clarification is essential.

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      New clause 12 gives us some structure for the scrutiny of the concordats and would oblige both parties—the Scottish Parliament and the House of Commons—to sign up to any concordat. We accept that there must be partnership consent, but it is absolutely unacceptable that, before the Scottish Executive is fully operational and able to make recommendations, it should be presented with a fait accompli.
      Mr. Wallace: Some form of concordat is undoubtedly necessary to ensure that there is smooth running and a good working relationship between Whitehall and the Scottish Parliament. The new clause highlights ways in which some aspects of the concordats could be more thoroughly rooted, rather than being mere gentlemen's and gentleladies' agreements.
      The new clause picks up on amendments tabled in Committee that did not find favour with the Government. The House will recall that we tabled amendments that would have formalised what the block grant should be, and anything that gives us a chance to debate the financial arrangements is probably better than the vagueness in the Bill.
      5.45 pm
      We were disappointed that the Government did not accept an amendment that would have given the Scottish Parliament rights to representation at discussions in the various European institutions and left the matter on the basis of good will. In so far as the new clause is designed to formalise such an arrangement, it is to be welcomed. Will the right hon. Member for Devizes (Mr. Ancram) confirm that the new clause refers to general procedures and would not require the House and the Scottish Parliament to rush through a debate to give a stamp of approval every time there was to be a delegation to the Council of Ministers?
      Mr. Ancram: The new clause refers to
      "Any concordat relating to … the procedures to be followed when issues relating to devolved matters are raised at the Council of Ministers"
      as well as concordats relating to
      "the implementation of the provisions of Parts 3 and 4".
      That covers the economic provisions, and it is not so much procedure as implementation that is important.
      Mr. Wallace: The right hon. Gentleman confirms that the procedures would not impose a cumbersome duty, and that is welcome.
      Dr. Godman: The hon. and learned Gentleman will recall that the hon. Member for North Tayside (Mr. Swinney) warned against Members of the Scottish Parliament being stitched up by Whitehall, but is not there a danger of their being stitched up by Westminster? Surely it would be better for concordats to be agreed by representatives of the Government and of the Scottish Parliament.
      Mr. Wallace: It is intended that both institutions should have an opportunity—Whitehall through the House, and the Scottish Executive through the Scottish Parliament—to give consent. I take some comfort from the guidance note that states:
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      "Concordats cannot come into operation until the devolved administrations are operational. Drafts of concordats cannot be put forward for signature until after the Elections in 1999; and agreements reached now cannot be imposed on the devolved administrations."
      That is an important point of principle, subject to the one caveat that, as we all know, he or she who pens the first draft usually manages to influence the way in which matters develop.
      It will be incumbent on the Scottish Executive, whatever its complexion, to be strong-minded and examine all the concordats critically. I am sure that the vast majority will be acceptable, but I hope that the Executive and, ultimately, the Parliament, will have the will to insist on changes if it is felt that the best interests of Scotland are being compromised through an agreement that has already been struck.
      Mr. Dominic Grieve: I am delighted to find myself agreeing, on this occasion, with the hon. Member for North Tayside (Mr. Swinney).
      We have had much discussion about concordats during our debates on the Bill. Let me pick up what was said by the hon. Member for Linlithgow (Mr. Dalyell). I am sure that the Minister will accept that concordats came into being to regulate disputes and areas of possible conflict between Departments subject to single Cabinet responsibility. Officials could reach agreements, and the Ministers in charge of them could either carry the can, or smooth out disagreements at the appropriate level.
      That has not always worked. I remember being involved in a case in which it was clear that the Ministry of Agriculture, Fisheries and Food in England and its Scottish Office equivalent were at loggerheads. A Scottish trawler man was prosecuted in Grimsby, and it was advanced in his defence that he had been told that something authorised by the Department in Scotland had not been authorised by London. He was given an absolute discharge, having, as I recollect, proved his case. In that instance, a concordat had not operated successfully.
      I am sure that the Minister will agree that concordats will be applied to a completely new situation and set of rules. We are, however, in an extraordinary position. The Government have introduced legislation which, on the one hand, emphasises such things as the sovereignty of the Scottish Parliament in the areas devolved to it, and, on the other hand, when it comes down to the nitty gritty of concordats, appears blithely to assume that everything will go on as before. It is clear that it cannot.
      The hon. Member for North Tayside was right to say that, when the Scottish Parliament is up and running, nothing could be better calculated to sour the relationship between it and this Parliament—which we, as Conservatives, want to operate as smoothly as possible—than concordats that appear to be behind-the-door stitch-ups by a common civil service. I have grave doubts about whether the common civil service can survive the passage of the Bill, but the underlying assumption about the operation of the concordats is that it will.
      I welcome new clause 12, and hope that the Government will consider it seriously. Here, for once, is a point on which all Opposition parties appear to be united. There is considerable merit and force in the new clause. Unless the operation of the agreements is seen to be transparent—and that can happen only if they are

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      brought before the Scottish Parliament and the House for approval—there will be a fertile area for conspiracy theorists. I must say that, in some contexts, I am beginning to think that the conspiracy theorists may have a point.
      The Achilles' heel of the Government's proposals is the idea—which may have been born of the notion that the same party would be in power in both Edinburgh and Westminster—that day-to-day government could be smoothly conducted through back-door agreements. That simply will not be possible, and we shall therefore have to live with the consequences of devolution. Agreements must be transparent, negotiated and argued about, and the best way in which to do that is to submit them for approval by both Houses.
      I welcome the new clause, and commend it to the House. I believe that it will have to be considerably widened, as there is no room for concordats in a framework of devolved government—all decisions will have to be made and approved by both Houses—but, leaving that to one side, the new clause is a step in the right direction, and is the only step that we can take, given that our previous criticisms have been rejected.
      Mr. McLeish: The proposals for the concordats appeared at paragraph 4.13 of the White Paper. We are talking about a good communications system between the Scottish Executive and its Departments and the United Kingdom Government. We want mutual understanding, and an appropriate exchange of information. We want advance notification, and joint working. That is simply about agreements. There is nothing sensational about having an agreement between the Parliaments on serious issues. Against that background—unfortunately, given the spirit in which the new clause was tabled—we must reject new clause 12.
      The new clause develops the theme introduced in Committee by the right hon. Member for Devizes (Mr. Ancram), who wanted all concordats to be approved by both Houses of Parliament, and to be logged in a public register. Now he wants certain concordats—relating to Europe and finance—to be approved by the Scottish Parliament and the House of Commons. I can see that that represents a more balanced approach, but we cannot agree to the new clause.
      As I explained in Committee, the purpose of the proposed concordats is not to cover matters that should more properly be dealt with by legislation. There is no hidden agenda. We have published guidance for Departments explaining what concordats are intended to achieve, which is the promotion of effective communications, and joint working between the Scottish Executive and UK Departments. Among other things, the guidance makes it clear that the proposed concordats cannot come into force—and this touches on the point made by the hon. Member for North Tayside (Mr. Swinney)—until the Scottish Executive has been established, and is in a position to agree to them.
      It is right that work on drafting such agreements should begin during the run-up to devolution, but there is no question of the Scottish Executive's being presented with a fait accompli. Guidance also makes it clear that the concordats are not intended to be legally binding, or to
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      create legal duties or liabilities for either party. I can give a categorical assurance that there will be no Whitehall fix. The concordats will not come into operation until the Scottish Executive and, of course, the UK Government have approved them.
      Mr. Dalyell: What bothers us is what will happen if there is no such understanding. Assuredly, sooner or later, there will be none, because there will be arguments about money. There will be tremendous pressure on the Scottish Executive and the Members of the Holyrood Parliament to secure more money for projects for education, health and housing, and for everything else that has been promised. I fear that talk about mutual understanding, which I agree is highly desirable, is whistling in the wind.
      Mr. McLeish: With great respect to my hon. Friend, I share neither his pessimism nor his cynicism about what may happen when the Parliament is established. These are working agreements, and there is nothing sensational about that. We want to ensure that, in creating a new institution of government in Scotland, we have a sensible working relationship between the UK Government and the Scottish Executive. Nothing could be more reasonable than the achievement of that, and our efforts must clearly be directed towards it.
      Mr. Wallace: The Minister has indicated that the concordats would not be legally binding. How would he answer the earlier point made by the hon. Member for Linlithgow (Mr. Dalyell) about whether they would be judicially reviewable—not in a case taken by the Parliament, but perhaps in a case taken by an individual who felt prejudiced by, for example, a concordat on inward investment?
      Mr. McLeish: The hon. and learned Gentleman asks a good question. The concordats are not intended to be legally binding contracts, or to substitute for matters properly covered by the Bill. However, it is likely that they will be justiciable to an extent. For example, if the Scottish Executive did not follow the consultation procedure set out in a concordat, it could be judicially challenged on the ground that the concordat had created a legitimate expectation that the procedure would be followed.
      Mr. Swinney: I have listened carefully to the Minister's explanation, which has led me to conclude that there is no point in the concordats. The quotation that I gave earlier cast some uncertainty over the Scottish Parliament's access to Europe, and raised the determination of the Ministry of Agriculture, Fisheries and Food to have greater access. Those substantial issues are covered in the Bill. The concordats will, I suspect, provide a further interpretation, which gives a totally different flavour to the Minister's comments.
      Mr. McLeish: It simply does not. We are talking not about different interpretations but about working agreements in relation to Europe and MAFF. There should be no sinister undertones suggesting that what is in the Bill and what has been discussed in the House will be undermined, distorted or interpreted differently. The concordats are simply working agreements, and. on that basis, it is sensible to operate them in the areas that we have identified.

      195
      The new clause would introduce a formal parliamentary procedure in relation to concordats that such non-statutory agreements do not merit. Concordats will be agreements covering joint working between the Scottish Executive and the United Kingdom Government. They will not be treaties between the two Administrations, nor will they be a means of constraining the discretion of the United Kingdom or the Scottish Parliament. I hope that, in the light of this constructive but brief debate, the right hon. Member for Devizes (Mr. Ancram) will see fit to withdraw the motion.
      6 pm
      Mr. Ancram: I am disappointed by that reply, which does not come to the nub of the matter. I did not table new clause 12 because I thought that it was the ideal way to deal with the matter: on finance and European representation, I sought, as did Liberal Democrat Members, to table amendments to the Bill to secure assurances and guarantees on those two important matters. The Minister told us then that, however important those matters were, everything would be all right because they would be dealt with by concordat: he did not say that we were talking about simple working arrangements sorting out sensible relationships between Departments. On enormously important issues, such as whether Scotland will have a proper voice in Europe on agriculture or fishing, we were told, "Don't worry, it's all going to be in concordats." Now we are told that the concordats are non-justiciable—
      Mr. McLeish indicated dissent.
      Mr. Ancram: Well, they are not legally enforceable. They will not come before this House or the Scottish Parliament, whose endorsement would give them weight. The Scottish public are being firmly and openly sold a pup. I tabled new clause 12 in good faith, having listened to the arguments that were advanced against my earlier amendments. I advanced it on a restricted basis—not to cover all concordats, as the Minister suggested at the end of his remarks—narrowing it to those two crucial areas. The Minister always claims to be a listening Minister and I should have thought that he would listen to the arguments advanced not only by me but by Members from other Opposition parties and accept new clause 12. His response is totally unsatisfactory and I ask my hon. Friends to support the new clause in the Lobby.
      Question put, That the clause be read a Second time:—
      The House divided: Ayes 166, Noes 278.

      Division No. 271]

      [6.1 pm

      AYES

      Ainsworth, Peter (E Surrey)

      Bottomley, Peter (Worthing W)

      Allan, Richard

      Bottomley, Rt Hon Mrs Virginia

      Amess, David

      Brady, Graham

      Ancram, Rt Hon Michael

      Brake, Tom

      Arbuthnot, James

      Brazier, Julian

      Atkinson, Peter (Hexham)

      Brooke, Rt Hon Peter

      Baldry, Tony

      Browning, Mrs Angela

      Beggs, Roy

      Bruce, Ian (S Dorset)

      Beith, Rt Hon A J

      Burns, Simon

      Bercow, John

      Burstow, Paul

      Beresford, Sir Paul

      Butterfill, John

      Blunt, Crispin

      Cable, Dr Vincent

      Body, Sir Richard

      Cash, William

      Boswell, Tim

      Chope, Christopher

      196

      Clappison, James

      Maclean, Rt Hon David

      Clark, Rt Hon Alan (Kensington)

      McLoughlin, Patrick

      Clarke, Rt Hon Kenneth (Rushcliffe)

      Malins, Humfrey

      Maples, John

      Clifton-Brown, Geoffrey

      Mates, Michael

      Collins, Tim

      Maude, Rt Hon Francis

      Cormack, Sir Patrick

      May, Mrs Theresa

      Cotter, Brian

      Michie, Mrs Ray (Argyll & Bute)

      Cran, James

      Morgan, Alasdair (Galloway)

      Cunningham, Ms Roseanna (Perth)

      Moss, Malcolm

      Nicholls, Patrick

      Curry, Rt Hon David

      Norman, Archie

      Dafis, Cynog

      Ottaway, Richard

      Davey, Edward (Kingston)

      Page, Richard

      Davies, Quentin (Grantham)

      Paice, James

      Davis, Rt Hon David (Haltemprice)

      Paterson, Owen

      Day, Stephen

      Pickles, Eric

      Dorrell, Rt Hon Stephen

      Prior, David

      Duncan, Alan

      Randall, John

      Duncan Smith, Iain

      Redwood, Rt Hon John

      Emery, Rt Hon Sir Peter

      Rendel, David

      Ewing, Mrs Margaret

      Robathan, Andrew

      Faber, David

      Robertson, Laurence (Tewk'b'ry)

      Fallon, Michael

      Roe, Mrs Marion (Broxbourne)

      Fearn, Ronnie

      Rowe, Andrew (Faversham)

      Flight, Howard

      Ruffley, David

      Forth, Rt Hon Eric

      Russell, Bob (Colchester)

      Fox, Dr Liam

      St Aubyn, Nick

      Fraser, Christopher

      Salmond, Alex

      Gale, Roger

      Sanders, Adrian

      Garnier, Edward

      Sayeed, Jonathan

      George, Andrew (St Ives)

      Simpson, Keith (Mid-Norfolk)

      Gibb, Nick

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

      Gillan, Mrs Cheryl

      Soames, Nicholas

      Gorman, Mrs Teresa

      Spelman, Mrs Caroline

      Gorrie, Donald

      Spicer, Sir Michael

      Green, Damian

      Spring, Richard

      Greenway, John

      Stanley, Rt Hon Sir John

      Grieve, Dominic

      Steen, Anthony

      Gummer, Rt Hon John

      Streeter, Gary

      Hague, Rt Hon William

      Stunell, Andrew

      Hammond, Philip

      Swayne, Desmond

      Hancock, Mike

      Swinney, John

      Hawkins, Nick

      Syrns, Robert

      Hayes, John

      Tapsell, Sir Peter

      Taylor, Ian (Esher & Walton)

      Heathooat-Amory, Rt Hon David

      Taylor, John M (Solihull)

      Horam, John

      Taylor, Sir Teddy

      Howard, Rt Hon Michael

      Tonge, Dr Jenny

      Howarth, Gerald (Aldershot)

      Tredinnick, David

      Hunter, Andrew

      Trend, Michael

      Jack, Rt Hon Michael

      Tyrie, Andrew

      Jackson, Robert (Wantage)

      Viggers, Peter

      Jenkin, Bernard

      Wallace, James

      Johnson Smith, Rt Hon Sir Geoffrey

      Wardle, Charles

      Waterson, Nigel

      Keetch, Paul

      Wells, Bowen

      Kennedy, Charles (Ross Skye)

      Welsh, Andrew

      King, Rt Hon Tom (Bridgwater)

      Whitney, Sir Raymond

      Kirkbride, Miss Julie

      Whittingdale, John

      Laing, Mrs Eleanor

      Widdecombe, Rt Hon Miss Ann

      Lait, Mrs Jacqui

      Wilkinson, John

      Leigh, Edward

      Willetts, David

      Letwin, Oliver

      Willis, Phil

      Lewis, Dr Julian (New Forest E)

      Winterton, Mrs Ann (Congleton)

      Lidington, David

      Winterton, Nicholas (Macclesfield)

      Lilley, Rt Hon Peter

      Woodward, Shaun

      Livsey, Richard

      Yeo, Tim

      Lloyd, Rt Hon Sir Peter (Fareham)

      Young, Rt Hon Sir George

      Llwyd, Elfyn

      Loughton, Tim

      Tellers for the Ayes:

      Luff, Peter

      Sir David Madel and

      MacGregor, Rt Hon John

      Mr. Oliver Heald.

      NOES

      197

      Ainger, Nick

      Ellman, Mrs Louise

      Ainsworth, Robert (Cov'try NE)

      Ennis, Jeff

      Anderson, Donald (Swansea E)

      Etherington, Bill

      Anderson, Janet (Rossendale)

      Field, Rt Hon Frank

      Armstrong, Ms Hilary

      Fisher, Mark

      Ashton, Joe

      Fitzpatrick, Jim

      Atherton, Ms Candy

      Fitzsimons, Lorna

      Atkins, Charlotte

      Flint, Caroline

      Barnes, Harry

      Flynn, Paul

      Barron, Kevin

      Follett, Barbara

      Bayley, Hugh

      Foster, Michael Jabez (Hastings)

      Beard, Nigel

      Galbraith, Sam

      Begg, Miss Anne

      Galloway, George

      Benn, Rt Hon Tony

      Gapes, Mike

      Bennett, Andrew F

      Gardiner, Barry

      Benton, Joe

      George, Bruce (Walsall S)

      Best, Harold

      Gerrard, Neil

      Betts, Clive

      Gibson, Dr Ian

      Blears, Ms Hazel

      Gilroy, Mrs Linda

      Blizzard, Bob

      Godman, Dr Norman A

      Boateng, Paul

      Godsiff, Roger

      Borrow, David

      Goggins, Paul

      Bradshaw, Ben

      Golding, Mrs Llin

      Brinton, Mrs Helen

      Gordon, Mrs Eileen

      Brown, Rt Hon Nick (Newcastle E)

      Griffiths, Jane (Reading E)

      Browne, Desmond

      Griffiths, Win (Bridgend)

      Buck, Ms Karen

      Grocott, Bruce

      Burden, Richard

      Grogan, John

      Burgon, Colin

      Hain, Peter

      Butler, Mrs Christine

      Hall, Patrick (Bedford)

      Byers, Stephen

      Hamilton, Fabian (Leeds NE)

      Campbell, Alan (Tynemouth)

      Hanson, David

      Campbell, Mrs Anne (C'bridge)

      Heal, Mrs Sylvia

      Campbell-Savours, Dale

      Healey, John

      Canavan, Dennis

      Henderson, Ivan (Harwich)

      Caplin, Ivor

      Hepburn, Stephen

      Casale, Roger

      Heppell, John

      Cawsey, Ian

      Hewitt, Ms Patricia

      Chapman, Ben (Wirral S)

      Hill, Keith

      Chaytor, David

      Hodge, Ms Margaret

      Chisholm, Malcolm

      Hoey, Kate

      Clapham, Michael

      Hood, Jimmy

      Clark, Rt Hon Dr David (S Shields)

      Hoon, Geoffrey

      Clark, Paul (Gillingham)

      Hope, Phil

      Clarke, Charles (Norwich S)

      Hopkins, Kelvin

      Clarke, Rt Hon Tom (Coatbridge)

      Howarth, Alan (Newport E)

      Clarke, Tony (Northampton S)

      Howarth, George (Knowsley N)

      Clelland, David

      Hughes, Ms Beverley (Stretford)

      Clwyd, Ann

      Humble, Mrs Joan

      Coffey, Ms Ann

      Hurst, Alan

      Cohen, Harry

      Hutton, John

      Coleman, Iain

      Iddon, Dr Brian

      Corbett, Robin

      Jamieson, David

      Corbyn, Jeremy

      Jenkins, Brian

      Corston, Ms Jean

      Johnson, Alan (Hull W & Hessle)

      Crausby, David

      Jones, Barry (Alyn & Deeside)

      Cryer, Mrs Ann (Keighley)

      Jones, Ms Jenny (Wolverh'ton SW)

      Cryer, John (Hornchurch)

      Cummings, John

      Jones, Jon Owen (Cardiff C)

      Cunliffe, Lawrence

      Jones, Dr Lynne (Selly Oak)

      Cunningham, Jim (Cov'try S)

      Jones, Martyn (Clwyd S)

      Dalyell, Tam

      Keeble, Ms Sally

      Darvill, Keith

      Keen, Alan (Feltham & Heston)

      Davey, Valerie (Bristol W)

      Kennedy, Jane (Wavertree)

      Davidson, Ian

      Khabra, Piara S

      Davies, Rt Hon Denzil (Llanelli)

      Kidney, David

      Davies, Geraint (Croydon C)

      Kilfoyle, Peter

      Dean, Mrs Janet

      King, Andy (Rugby & Kenilworth)

      Dismore, Andrew

      King, Ms Oona (Bethnal Green)

      Dobbin, Jim

      Kingham, Ms Tess

      Doran, Frank

      Ladyman, Dr Stephen

      Dowd, Jim

      Laxton, Bob

      Drew, David

      Leslie, Christopher

      Dunwoody, Mrs Gwyneth

      Levitt, Tom

      Eagle, Angela (Wallasey)

      Lewis, Ivan (Bury S)

      Eagle, Maria (L'pool Garston)

      Lewis, Terry (Worsley)

      198

      Linton, Martin

      Russell, Ms Christine (Chester)

      Livingstone, Ken

      Ryan, Ms Joan

      Lock, David

      Salter, Martin

      Love, Andrew

      Sawford, Phil

      McAvoy, Thomas

      Sedgemore, Brian

      McCabe, Steve

      Shaw, Jonathan

      McCafferty, Ms Chris

      Sheerman, Barry

      McDonagh, Siobhain

      Sheldon, Rt Hon Robert

      McDonnell, John

      Shipley, Ms Debra

      McFall, John

      Simpson, Alan (Nottingham S)

      McGuire, Mrs Anne

      Singh, Marsha

      McIsaac, Shona

      Skinner, Dennis

      Mackinlay, Andrew

      Smith, Rt Hon Andrew (Oxford E)

      McLeish, Henry

      Smith, Angela (Basildon)

      McNamara, Kevin

      Smith, John (Glamorgan)

      Mactaggart, Fiona

      Smith, Llew (Blaenau Gwent)

      McWalter, Tony

      Snape, Peter

      McWilliam, John

      Soley, Clive

      Mahon, Mrs Alice

      Starkey, Dr Phyllis

      Mallaber, Judy

      Stevenson, George

      Marshall, David (Shettleston)

      Stewart, David (Inverness E)

      Marshall, Jim (Leicester S)

      Stewart, Ian (Eccles)

      Martlew, Eric

      Stinchcombe, Paul

      Meacher, Rt Hon Michael

      Straw, Rt Hon Jack

      Meale, Alan

      Stringer, Graham

      Michael, Alun

      Stuart, Ms Gisela

      Michie, Bill (Shef'ld Heeley)

      Sutcliffe, Gerry

      Milburn, Alan

      Taylor, Rt Hon Mrs Ann (Dewsbury)

      Moffatt, Laura

      Moonie, Dr Lewis

      Taylor, David (NW Leics)

      Moran, Ms Margaret

      Temple-Morris, Peter

      Morgan, Ms Julie (Cardiff N)

      Thomas, Gareth (Clwyd W)

      Mullin, Chris

      Thomas, Gareth R (Harrow W)

      Murphy, Denis (Wansbeck)

      Timms, Stephen

      Norris, Dan

      Tipping, Paddy

      O'Brien, Bill (Normanton)

      Todd, Mark

      O'Brien, Mike (N Warks)

      Touhig, Don

      Olner, Bill

      Truswell, Paul

      Organ, Mrs Diana

      Turner, Dennis (Wolverh'ton SE)

      Palmer, Dr Nick

      Turner, Dr Desmond (Kemptown)

      Pearson, Ian

      Turner, Dr George (NW Norfolk)

      Pendry, Tom

      Twigg, Derek (Halton)

      Perham, Ms Linda

      Twigg, Stephen (Enfield)

      Vaz, Keith

      Pickthall, Colin

      Walley, Ms Joan

      Pike, Peter L

      Ward, Ms Claire

      Pollard, Kerry

      Wareing, Robert N

      Pope, Greg

      Watts, David

      Pound, Stephen

      White, Brian

      Prentice, Gordon (Pendle)

      Whitehead, Dr Alan

      Primarolo, Dawn

      Wicks, Malcolm

      Prosser, Gwyn

      Williams, Rt Hon Alan (Swansea W)

      Quin, Ms Joyce

      Quinn, Lawrie

      Williams, Alan W (E Carmarthen)

      Radice, Giles

      Williams, Mrs Betty (Conwy)

      Rammell, Bill

      Winnick, David

      Rapson, Syd

      Winterton, Ms Rosie (Doncaster C)

      Raynsford, Nick

      Wood, Mike

      Reed, Andrew (Loughborough)

      Woolas, Phil

      Reid, Dr John (Hamilton N)

      Wray, James

      Roche, Mrs Barbara

      Wright, Anthony D (Gt Yarmouth)

      Rooker, Jeff

      Wright, Dr Tony (Cannock)

      Rooney, Terry

      Wyatt, Derek

      Ross, Ernie (Dundee W)

      Rowlands, Ted

      Tellers for the Noes:

      Ruane, Chris

      Ms Bridget Prentice and

      Ruddock, Ms Joan

      Mr. Kevin Hughes.

      Question accordingly negatived.

    New clause 17

      CROSS—BORDER RESERVED BODIES
      '.—(1) For the purposes of this Act the bodies as defined in subsections (2) and (3) of this section shall be cross—border reserved bodies.

      199

      (2) Cross—border reserved bodies shall be public bodies, including regulatory bodies, whose responsibilities include reserved matters but whose remit covers Scotland.

      (3) Without prejudice to the generality of the foregoing, such bodies shall include—

      (a) the BBC,

      (b) the Independent Television Commission,

      (c) the Radiocommunications Agency,

      (d) the Post Office,

      (e) the Commission for Racial Equality,

      (f) the Equal Opportunities Commission,

      (g) Governmental Departments, Ministers of the Crown, non-departmental public bodies and Departmental Agencies.

      (4) The Parliament shall have the power to summon witnesses and require the production of documents from cross-border reserved bodies.'.—[Ms Roseanna Cunningham.]

      Brought up, and read the First time.
      Ms Roseanna Cunningham: I beg to move, That the clause be read a Second time.
      Mr. Deputy Speaker: With this, it will be convenient to discuss Government amendments Nos. 41 to 45, 152 to 158, 160 to 180, 202, 233, 249, 206, 214 and 220.
      Ms Cunningham: I am conscious that there is little time for the debate on the new clause, so I shall try to be as brief as possible.
      New clause 17 is an attempt to get around the vexed question of accountability of bodies that deal in reserved matters, but are nevertheless of fundamental importance to Scotland. Effectively, we are proposing a new category of cross-border reserved bodies, which would exist alongside cross-border public bodies as defined in the Bill. The new category would comprise public bodies, including regulatory bodies, whose responsibilities include reserved matters, but whose remit covers Scotland; we have listed them in the new clause.
      The Government amendments make two fundamental changes to the cross-border public bodies by changing the definition and widening the category to include Government Departments and officials already included in new clause 17. Rather than specify and modify the bodies by subordinate legislation, the Government now plan to achieve that by Order in Council. In practical terms, it may make no difference, but I hope that that will not be a mechanism whereby the relevant Westminster Departments can hide behind the Queen's authority—something I am known for being unhappy about.
      6.15 pm
      Our new clause would give the Scottish Parliament the power to summon witnesses and require evidence, rather than being able only to invite them. The underlying principles are fourfold. First, the new clause is about openness and accountability. We may not be permitted to legislate for bodies such as the BBC or the Post Office, but it is essential that we can scrutinise them and call them to account in matters that directly affect Scotland.
      In recent weeks, we have witnessed an example in the shape of the United Kingdom Atomic Energy Authority and the catalogue of errors at Dounreay. Would a Scottish Parliament have had the power to summon Roy Nelson to
      200
      give evidence? As I read the Bill—the Minister may wish to comment—we might have been able to summon Mr. Nelson to answer questions in respect of environmental issues, which would cover the underestimation of radioactive emissions, but we could not have called him to answer questions about the security issues arising from Chief Constable Tony Pointer's resignation, or about industrial issues, such as the plans for the use or disposal of the Georgian waste.
      I can only imagine the rancour that would result. Frequently throughout our debates on the Scottish Parliament, hon. Members on both sides have stated that it is important for us to minimise the likelihood of such rancour, but if we do not build in a system such as is proposed in new clause 17, there will be a greater likelihood of such clashes occurring.
      The other example, which I have used earlier in our proceedings on the Bill, is that of the "Panorama" interview of John Major broadcast during the 1995 Scottish elections. As far as I can see, John Birt would not have been required to answer to the Scottish Parliament. The Minister may argue that Mr. Birt might have agreed to come and speak to us, but there would have been nothing a Scottish Parliament could do had he refused to do so. Such issues are bound to arise and, sooner or later, we shall have a great deal of angry debate and frustration being expressed because of the Parliament's inability to call to account people or bodies that have an important role to play in Scottish life.
      The Scottish Parliament has been billed as a Parliament with teeth, but so far, they look more like milk teeth than real teeth and we ought to try to beef them up a bit where possible. That is the second major principle underlying the new clause. Thirdly, there is the issue of pulling rank, in that the Bill appears to put people like John Birt above the reach of the Scottish Parliament. I fear that that will lead to a belittling of the Parliament from the outset and give rise to many of the grievances and arguments that everybody has said they do not want.
      Finally—I make this point in all sincerity—this Bill is about devolution, not independence. What I am proposing would not be appropriate if we were discussing a constitution for independence, but we are discussing devolution, and it ought to be perfectly possible and logical to set up procedures such as those outlined in new clause 17. There need be no problem with those procedures and I hope that the Government intend seriously to consider them.
      Mr. Oliver Heald: The arguments that have been deployed reveal some of the problems that are bound to result from the illogical way in which the reserved powers are set out in the Bill. If equal opportunities law is separated from equal opportunities policy, policy on misuse of drugs is separated from policy on crime in general, or issues such as abortion and euthanasia—which obviously have much in common—are separated, there will be areas of dispute.
      I remember that in our earlier debates, the official Opposition and the Scottish National party argued that there was no logic in broadcasting not being a matter that could be dealt with by the Scottish Parliament. There were also arguments about who could be summoned by the Scottish Parliament. The SNP argued for a wider group of bodies than those that deal simply with devolved

      201
      matters. The debate on new clause 17 harks back to the two themes of the reserved powers and their illogicality, and the problem of who can be held accountable to the Scottish Parliament.
      The solution in the new clause—whereby certain public bodies are designated cross-border reserved bodies—simply to allow witnesses to be summoned and asked to produce documents for the Scottish Parliament is a good wheeze. I congratulate the Scottish National party on its ingenuity. However, the Opposition do not accept the new clause because it is too wide and would cause difficulties. It is for the Government to explain how the Bill can be a source of settled law for the people of Scotland when there are already so many internal disputes. The fuzzy boundary between the powers is bound to be exploited by the Scottish National party, and it is time that the Government came up with a better solution.
      The Government amendments rename cross-border public bodies as authorities and widen that term by including non-statutory bodies, offices, office holders and Government Departments. They provide for subordinate legislation under clauses 84 and 85 to be introduced by Order in Council. They contrast those authorities with the Scottish public authorities, which are local authorities, and define Scottish public authorities in clause 111.
      Three questions arise from the Government amendments. First, the extension of the definition of cross-border public bodies to include non-statutory bodies, office holders, Government Departments and so on clearly aims to include certain authorities that were not previously included. Who are the main contenders to be included in the new category, and why?
      Secondly, the Minister has provided that the subordinate legislation under clauses 84 and 85 should be made by Order in Council, with procedure here and in Edinburgh. Can he reassure the House that that will be dealt with by affirmative procedure and, if not, will he explain why not? Clearly, such legislation is important because it would modify a range of laws.
      Thirdly, a Scottish Parliament will be able to legislate in respect of a Scottish public authority such as a council, which has a mixture of reserved and non-reserved functions. For example, management of housing benefit would be reserved, but is dealt with by local authorities in Scotland. What will be the restrictions on the Parliament's ability to legislate? Will it be able to interfere with the operation of the reserved functions?
      For example, what safeguards are there against a change being made by the Parliament that would have adverse side-effects on the administration of housing benefit? Is there any way in which such a law could be prevented? Should it be prevented? What is the Minister's view on that issue? Clause 33 contains a mechanism, which is known as the governor general clause, by which the Secretary of State can intervene, but that would not be consistent with the position that I have described. I look forward to the Minister's answers.
      Mr. Dalyell: The smile on the face of the hon. Member for Moray (Mrs. Ewing) revealed what I had suspected: this is not quite as artless a new clause as has been made out.
      Mr. Alasdair Morgan: Perhaps she is happy.
      Mr. Dalyell: Perhaps she is happy—she has plenty to be happy about in the Bill.
      202
      I suspect that the new clause could be subtitled "the haul John Birt up to Holyrood and give him a thorough pasting on a rack" clause. From the assent of the hon. Members for Moray and for Perth (Ms Cunningham), I suspect that I am nearer the truth than the House might think. I ask my hon. Friends, is not the new clause and the thought behind it a device to create friction?
      Mr. Gorrie: I strongly support the new clause in the name of Scottish National party Members. It is an attempt to deal with some of the issues, including broadcasting, equal opportunities and racial equality, on which other hon. Members and I tabled amendments in Committee. I am sorry that the hon. Member for Linlithgow (Mr. Dalyell) seems to have a new doctrine that gloom must pervade all Members of the House at all times. Although we must all make our own judgment, I think that he is mistaken and that the new clause is a genuine attempt to produce a reasonable modus operandi which would reduce friction. For that reason, I am happy to support it.
      I have read the numerous Government amendments and not seen anything sinister in them, but that may be my fault, and I look forward to the Minister explaining them.
      Mr. McLeish: The hon. Member for Edinburgh, West (Mr. Gorrie) has made an excellent judgment on the Government amendments, and I am sure that it will hold for the last few minutes of the debate.
      I shall deal specifically with new clause 17 in the name of the hon. Member for Perth (Ms Cunningham). We have reserved bodies, devolved bodies and cross-border public bodies. The new clause would create a new category of cross-border reserved bodies. The Government's policy on the power of the Scottish Parliament to summon witnesses and documents from bodies operating in Scotland with responsibilities only in reserved areas was clearly set out in the White Paper. We recognise the importance of those bodies in the economic and social life of Scotland. For that reason, the Parliament will be able to invite such bodies to give evidence. I know that that is not acceptable to the Scottish nationalists.
      Rightly, bodies that are active in devolved areas could be held to account by the Scottish Parliament for their activities in those areas. However, it would wrong for the Parliament to be able to hold bodies to account for their activities in reserved areas because the direct line of responsibility and accountability lies at Westminster.
      Mr. Heald: If the Scots people are dissatisfied with broadcasting in Scotland, why should they not be able to force the person in charge of it to come before the Parliament?
      Mr. McLeish: We have discussed that matter in some detail previously. We are trying to make a judgment about reserved and devolved areas, and I think that we have arrived at a balanced settlement. In light of my comments—which have been unbelievably brief—I hope that the hon. Lady will withdraw her new clause.
      In addition, we propose that there should be devolution of functions under clause 59 in some cases. For example, Scottish Ministers will be consulted about the appointment of one member of some bodies, including the Equal Opportunities Commission, the Commission

      203
      for Racial Equality, the Independent Television Commission—to which the new clause refers—and the Radio Authority. Those bodies will make their annual reports available to Scottish Ministers so that they can present them to the Scottish Parliament. Arrangements will also be made so that Scottish Ministers are consulted about advice to Her Majesty regarding the appointment of the BBC national governor for Scotland. I am afraid that it is difficult to go into much detail in the time available.
      6.30 pm
      Ms Roseanna Cunningham: Perhaps the Minister will answer one question: what does he think will be the reaction of the Scottish Parliament or Scotland at large when the first refusal to an invitation is received—which is what will happen?
      Mr. McLeish: I live in a realpolitik and I understand the import of the hon. Lady's comments. This settlement is about devolution. It reserves matters to Westminster where the legislative competence will lie and it devolves matters to Scotland where the legislative competence will lie. Through myriad complex organisations, we are attempting to introduce a settlement that will endure and that looks logical not only to Scots and Members of the Scottish Parliament, but to those in England, in Wales and at Westminster. It is a question of balance. That is why I hope that, despite the difficulties, we have arrived at a fair settlement.
      The Scottish Parliament will be able to discuss reserved matters and make its views known in many areas. I expect that if the Scottish Parliament issues an invitation in a constructive manner, many people will want to respond beyond the issue of the devolved areas where the Parliament will have a statutory right to demand attendance.
      Because of the brevity of the discussion, I shall write to all hon. Members who have raised points and I shall answer the three questions posed by the official Opposition. I apologise that I have not had time to go into the detail of the Government's amendments, but they are mainly technical amendments which will improve the Bill and do nothing more than that.
      Ms Cunningham: I am sorry to hear the Minister's reply, which I think that he will live to regret. I shall not press the matter to a vote this evening, but I think that it will come back to haunt him. I beg to ask leave to withdraw the motion.
      Motion and clause, by leave, withdrawn.

    New clause 18

      CONSTITUTIONAL COURT
      '.—(1) There shall be a Constitutional Court in the United Kingdom.

      (2) Questions on the vires or legislative competence of any Bill or provision of a Bill under this Act shall be referred to the Constitutional Court for a decision.

      (3) The Constitutional Court shall consist of fourteen members, six elected by the House of Commons, six elected by the Scottish Parliament, the Lord Chancellor and the Lord Advocate.

      (4) No member of the Constitutional Court shall sit and act as a member of the court in proceedings under this Act unless he—

      (a) holds or has held high judicial office;

      204

      (b) has been a member of the Scottish or English bar for a period of ten years;

      (c) has been a registered solicitor in Scotland or England for a period of fifteen years;

      (d) is or has been a professor of law or legal studies in the United Kingdom for a period of ten years.

      (5) Her Majesty may by Order in Council—

      (a) confer on the Constitutional Court in relation to proceedings under this Act such powers as Her Majesty considers necessary or expedient; and

      (b) make rules for regulating the procedure in relation to proceedings under this Act before the Constitutional Court.

      (6) In this section "proceedings under this Act" means proceedings on a question referred to the Constitutional Court under section 32 or proceedings under Schedule 6.'. —[Salmond.]

      Brought up, and read the First time.
      Mr. Salmond: I beg to move, That the clause be read a Second time.
      Mr. Deputy Speaker: With this, it will be convenient to discuss the following amendments: No. 75, in clause 31, page 15, line 29, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 97, in page 15, line 31, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 98, in page 15, leave out lines 37 and 38 and insert—
      '"Constitutional Court" means the body established under section (Constitutional Court).'.
      No. 99, in clause 32, page 15, line 41, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 100, in clause 34, page 16, line 45, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 78, in schedule 6, page 79, line 40, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 79, in page 79, line 43, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 81, in page 80, line 3, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 82, in page 80, line 10, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 83, in page 80, line 11, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 101, in page 81, line 5, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 87, in page 81, line 9, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 88, in page 81, line 10, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 90, in page 81, line 40, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 102, in page 82, line 4, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 91, in page 82, line 5, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 93, in page 82, line 10, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 103, in page 82, line 16, leave out 'Judicial Committee' and insert 'Constitutional Court'.

      205
      No. 95, in page 82, line 19, leave out 'Judicial Committee' and insert 'Constitutional Court'.
      No. 76, in clause 94, page 42, line 17, leave out from beginning to end of line 36.
      No. 117, in page 42, line 33, at end insert—
      '(d) provide such resources to the Judicial Committee as Her Majesty considers necessary or expedient.'.
      No. 122, in schedule 7, page 88, line 1, after 'counsel', insert 'or a solicitor'.
      No. 123, in page 88, line 7, after 'counsel', insert 'or a solicitor'.
      Mr. Salmond: That is quite a mouthful, Mr. Deputy Speaker. New clause 18 allows us to debate briefly a matter to which we did not do justice in Committee. I welcome the opportunity to explore that in a little more detail now.
      We are considering what will happen in the event of a dispute between the Scottish and Westminster Parliaments and resolving what may or may not be vires or extra vires in terms of what the Scottish Parliament wants to do. New clause 18 proposes replacing the Judicial Committee of the Privy Council, which has authority in the Bill as the body that adjudicates on disputes and vires matters for the Parliament, and creating a constitutional court comprising 14 members: six elected by the Scottish Parliament and six elected by Westminster with a Lord Advocate and a Lord Chancellor. The members of the court will be senior judges or advocates of 10 years' standing, solicitors of 15 years' standing or professors of law or legal studies in the United Kingdom of 10 years' standing.
      According to subsection (4), prospective members do not have to have all four qualifications—just one of the four will suffice. I thank the hon. and learned Member for Orkney and Shetland (Mr. Wallace) for pointing that out to me. I am not sure whether a Bill in respect of that legal advice can be expected or whether the hon. and learned Gentleman is protecting his position in case he wishes to serve on that constitutional court. Whatever the reason, I am grateful to him for drawing it to my attention. We must debate this important matter.
      We have chosen a model based on the German constitutional court, which has been exported recently to Spain and Mexico. We propose that, like the German model, the court's membership should be widely drawn from legal and academic experts. The key points in this discussion are the deficiencies which I see in the Judicial Committee of the Privy Council.
      Hon. Members may or may not be aware that the Judicial Committee consists of more than 100 people—only two of whom are women. The average age of members of the Judicial Committee of the Privy Council is 67. Of the judges on the committee, there are more from New Zealand—14—than from Scotland, which has nine. In addition, because of the way in which the committee is formed, there are several obvious political appointees. Eleven committee members are former Tory Ministers from the Governments of Lady Thatcher and the right hon. Member for Huntingdon (Mr. Major). Only four members of the Judicial Committee are current Labour Ministers, and the vast majority of members are from England.
      Mr. Desmond Browne: The hon. Gentleman's analysis of the membership of the
      206
      Judicial Committee is very interesting, but does he have one jot of evidence to suggest that that has influenced the decisions of that body at any time?
      Mr. Salmond: The hon. Gentleman is on very dangerous ground. For example, only two out of more than 100 Judicial Committee members are women. We hope to achieve more gender equality in the Scottish Parliament than is evident in this place. It is particularly important to recognise that only two women serve on the Judicial Committee—and the hon. Gentleman would do well to appreciate that fact. It is not good enough to say that it does not matter that there is a huge gender imbalance on the Committee, an imbalance in terms of the nationalities and backgrounds of members, or that the average age of members is 67. In the normal course of events, those aspects would affect members' outlook on the various disputes that they were asked to resolve. Furthermore, I do not think that a committee that is so dramatically unrepresentative of the legal profession—never mind of society as a whole—is best placed to judge important political disputes between the Scottish and Westminster Parliaments.
      I must be fair to the Minister, who has written to me in some detail about this matter. I shall share with the House some arguments that he has advanced.
      Mr. Heald: I have read new clause 18, which talks about decisions regarding vires and legislative competence. They are not political issues, but issues of law. Is the hon. Gentleman seriously advocating establishing a political court?
      Mr. Salmond: I have said that the requirements for serving on the court would be judicial office or judicial qualifications. A body that adjudicates on political disputes must be seen to be fair and balanced in terms of its background and the way in which it reflects both sides of the argument. If it is not, many people will believe that the body has predetermined notions about what judgments should be arrived at. If the House will allow me to reveal who the Minister says might hear such matters, we might make some progress in examining possible flaws in the Bill.
      Mr. Browne rose—
      Mr. Salmond: I shall give the hon. Gentleman one more go, and then I must proceed as time is limited.
      Mr. Browne: I have one more question before we move from the terms of the new clause and the qualifications for membership of the constitutional court. Is the hon. Gentleman suggesting that those who have been registered as solicitors in Scotland for 15 years, and possibly never practised, and those who have been members of the Scottish or English Bars for 10 years, and possibly never practised, will be qualified to sit on the court?
      Mr. Salmond: Is the hon. Gentleman suggesting that being the Leader of the House, which is one of the qualifications for being a member of the Judicial Committee of the Privy Council, is necessarily a good qualification for membership of that body? Our argument is that some legal qualifications—some background and

      207
      training in the law—might be a useful requirement. The Judicial Committee of the Privy Council seems to be made up of people who were hangovers from the Governments of Lady Thatcher. I am not certain that that is a suitable panel to move into the new politics that we are trying to develop between the Scottish Parliament and the Westminster Parliament.
      In his letter to me, the Minister stated:
      "The Judicial Committee of the Privy Council will be composed of those members of the Privy Council, not over 75,"—
      that is important, as it rules out a substantial number of members of the Judicial Committee—
      "who hold or have held the Office of Lord of Appeal in Ordinary or high judicial office in the UK. This would include past and present judges of the Court of Session who are Privy Councillors. Membership of the JCPC for devolution hearings is therefore more restricted than for other hearings. For example, the present and former Lord Presidents of the Council will not be eligible to sit, nor will Commonwealth judges."
      Clearly, that does not deal with my points about gender inequality or the background of the judges.
      The Minister continued:
      "The actual composition of the JCPC to hear devolution cases will be decided by the senior Lord of Appeal in Ordinary. Normally we would expect the case to be heard by 5 Lords of Appeal in Ordinary, although this may not always be possible. It is very unlikely that Scottish judges would not be represented on the panel for devolution cases. That is usually the case for Scottish civil law appeals which are referred to the House of Lords. However, members of the panel will not be chosen to represent national interests."
      If I can compress what the Minister told me in his letters, that means that, in key cases, Scots judges may not be involved in the decision and, if they are, they will certainly be in a minority. An understanding of Scots law does not seem to be a requirement for deciding the legitimacy of Acts of the Scottish Parliament. That, to me, is unacceptable.
      Our proposal would, in contrast, produce a more balanced court, which would include a wider range of expertise and understanding of Scots and constitutional law and be democratically appointed by both Parliaments. The composition of any panel of judges would be decided by the court as a whole. It is unlikely that all 14 judges would sit in judgment in any one case. The figure is likely to be five, as in the Government's proposal, but two or three of them would have some familiarity with the Scottish legal system. I am surprised that, as a member of that fine profession, the hon. Member for Kilmarnock and Loudoun (Mr. Browne) does not seem to think that that would be a useful requirement.
      We are debating the way in which disputes between the two Parliaments can be arbitrated fairly. It is not good enough to pick an existing institution for whatever purpose, however it was formed and whatever elements it contains. The development of the Judicial Committee of the Privy Council has been complex, like Topsy. We should examine the best practice elsewhere in Europe—the German constitutional court is an extremely useful example—and see how that can be transported to meet the requirements of fair arbitration between the Scottish and Westminster Parliaments.
      If hon. Members are uncomfortable with the notion that the Parliaments should have equal standing in nominating members of the court, that betrays an attitude that regards the Scottish Parliament as subservient and the
      208
      Westminster Parliament as its master—far better to move to a balanced situation, where both Parliaments enjoy equal and mutual respect in the resolution of disputes.
      Mr. Browne rose—
      Mr. Salmond: I have given way twice to the hon. Gentleman, and I shall not give way again, or his hon. Friends will get crowded out.
      Mr. McLeish indicated assent.
      Mr. Salmond: I saw the Minister nodding vigorously when I refused that intervention.
      This debate, and the attitude towards such a proposal, is a touchstone in determining whether hon. Members regard the Scottish Parliament as a real Parliament, entitled to real respect, or as akin to a subservient council, which this Parliament and its institutions could dispose of as they will.
      6.45 pm
      Mr. Heald: Perhaps I should declare an interest, as I think that I would be technically qualified to be a member of the court proposed by the hon. Member for Banff and Buchan (Mr. Salmond). Listening to his argument as it unrolled, one felt increasingly uneasy at what he was suggesting. He was proposing a court that was not a court, but a political body, with representatives fighting for each country. Such a body could be influenced by feelings of national pride.
      One of our proudest boasts about British courts is that they have not been partial. Our judges have been able to consider the law and make decisions uncluttered by concerns about politics, patriotism and so on. It would be a great pity if we set up a kangaroo political court to deal with the issues under discussion. It is in the interests of all the countries in the family of the United Kingdom that we should have the sort of courts that we have enjoyed in Scotland, England and Wales—courts that are impartial and on whose judgment one can rely.
      As a barrister, I practised in the courts in England and Wales for many years. I often did not like the decisions that judges made, but I never had the slightest doubt that they were doing their duty, concerned to reach a proper decision on the facts and the law.
      Mr. Salmond: First, is the spokesman for the official Opposition unaware that some members hold office on the Judicial Committee by virtue of political office? Secondly, would he describe the German constitutional court as a kangaroo court, given the system of nomination to it, which is similar to what we propose?
      Mr. Heald: The Lord Chancellor does not sit in court doing a political job; he does the job of a judge. To suggest that members of the court are acting in a political role is so far from the truth that it beggars belief.
      Many hon. Members want to speak in the debate, so I shall be brief. The Opposition proposed that the House of Lords Appellate Committee should be the arbiter in these matters. That would deal with some of the hon. Gentleman's complaints. For example, there would be

      209
      fewer members of the panel, there would not be judges from New Zealand, and there would be strong representation of the excellent Scottish judges we have.
      Mr. Dalyell: What we are discussing is an embryo, if not an actual, proto-constitutional court. If we are embarking on that road, there ought to be a statement at the Dispatch Box from the Prime Minister and no other Minister, because that is entirely new in British politics. The decisions taken by the court would, frankly, be political decisions. Do not tell me that there could be any meaningful argument without it being highly political. To set up a court to take quasi and actual political decisions requires a statement from my right hon. Friend the Prime Minister at the Dispatch Box, outlining the Government's policy on these matters.
      I have one question to my hon. Friend the Minister. If there is a constitutional court, what is the Government's view of what would be decided by that court? We ought to hear the scope of any such body which, as I said, will be new in British politics. In the short time available, I hope that my hon. Friend will deal with that question.
      Mr. Wallace: There is a case for a constitutional court. In the context of the many constitutional changes that are taking place, the country should have a constitutional court. However, the new clause is not some kind of touchstone, a virility symbol for the Scottish Parliament. A touchstone should be crafted somewhat better than new clause 18.
      There is not just the technical point of whether one has to qualify under all four headings. For example, the Lord Advocate should not be a member of the court. His role should be to plead before the court, not to be a member of it. There is also no provision for the composition of the court in any given case, and Scottish representation might still not necessarily be achieved.
      My biggest concern is that the new clause falls foul of the danger—to which the hon. Member for Banff and Buchan (Mr. Salmond) referred—that the system could develop like Topsy. A constitutional court will ultimately be needed because there will be questions of vires between the Welsh assembly and the House, between the Scottish Parliament and the House, and on human rights, freedom of information and Northern Ireland. If we are to go ahead, we should do so properly, not on the basis of just one dimension of the evolving constitutional argument.
      That was the thinking in the Scottish Constitutional Convention when we considered whether we should opt for a constitutional court or the Judicial Committee of the Privy Council. The view was taken that a constitutional court, while ultimately being the desirable end point, could not be achieved in the context of the Scotland Bill. Therefore, the JCPC was chosen as the best of what was there.
      Is there any way of ensuring that, in any sitting of the JCPC, there is Scottish representation? It is a question not of justice being done, but of it being seen to be done. Lawyers here will no doubt accept that those who sit on the Judicial Committee will act judicially, but try to explain that if a decision went against the position taken
      210
      by the Scottish Parliament and the JCPC did not contain a single Scot. It would no doubt be legally right, but try to explain that to a sceptical population who would, no doubt, see some conspiracy there.
      Dr. Godman: On the last question raised by the hon. and learned Member for Orkney and Shetland (Mr. Wallace), I remind him that the composition of the tribunal inquiring into Bloody Sunday has been broadly accepted by the families of the men and youths who were shot on that terrible day. The judge who will chair the tribunal is an English Law Lord and the other two jurists are from elsewhere in the Commonwealth.
      I think that I was the first in the House to ask the Secretary of State to give sympathetic consideration, with his ministerial colleagues, to the setting up of a constitutional court. New clause 18 states:
      "There shall be a Constitutional Court in the United Kingdom."
      It goes on to talk exclusively of Scotland and England. I know that I shall be reminded that we are debating the Scotland Bill, but I believe that there will be a massive vote in support of the yes campaign in the referendum in Northern Ireland on 22 May, and the House will shortly afterwards debate a Northern Ireland Bill. What then of the new clause which states:
      "There shall be a Constitutional Court in the United Kingdom."?
      Would that have to be amended to include judges from the Northern Ireland judiciary? If the clause had referred to a British constitutional court, that might be a different matter.
      Mr. Salmond: Let me put the hon. Gentleman's mind at rest. If the Minister tells me that he accepts the principle of a constitutional court, I shall be amenable to accelerating the time scale this evening.
      Dr. Godman: I am suggesting that the new clause should be withdrawn until we reach that Northern Ireland legislation concerning the setting up in Northern Ireland of an assembly which I hope will be more akin to the Scottish Parliament than to the Welsh assembly.
      Mr. McLeish: The Government recommend that the House reject new clause 18 proposed by the Scottish National party.
      Again, the issue should not be seen in the context of current parliamentary or Government circumstances at Westminster plus what we shall have at Holyrood. The nationalists try to pretend that we are moving towards some independence model. The basis of this settlement is devolution, not federalism, which is basically the model adopted, quite legitimately, by the SNP to frame some of its ideas. The measure is not about independence; it seeks to allow issues concerning vires to be resolved in the most constructive and effective way possible.
      It is dangerous to suggest that we introduce politics into the court; that we introduce a kind of Scotland-England issue into the court. At the end of the day, we need to consider the legality surrounding a particular issue, not to politicise everything. That may be the nationalists' wish, but it does not lead to good or sensible government.
      The Government reject new clause 18 and the consequential amendments. The new clause would create a constitutional court to replace the role currently

      211
      provided for the Judicial Committee of the Privy Council in determining questions concerning the legislative competence of the Scottish Parliament.
      Before dealing in detail with the SNP's proposal for a constitutional court, I shall discuss the existing arrangements that are within the Bill's competence. The policy that the Bill reflects was summarised in chapter 4 of the White Paper. It recognised that, from time to time, the Scottish Executive and the UK Government would take different views of the Scottish Parliament's legislative powers. In most cases, we expect that they should be able to resolve such views quickly and amicably.
      The Government recognised that, at times, there would be disputes and that it would be necessary to have a mechanism to resolve such disputes. The Government consider that the JCPC would be the appropriate body ultimately to resolve such issues.
      The Government do not support the proposed creation of a constitutional court. It is not necessary to try to create a new structure. The JCPC already exists. It has vast experience of dealing with constitutional issues from the Commonwealth. It is ideally placed to resolve any disputes about vires.
      It is wrong to suggest, as hon. Members have, that issues will not be fairly considered and will be dominated by an English bias. The JCPC is an impartial body. I have no doubt that each case will be decided on its merits after careful consideration of the facts of the case. Of course, the decision of the JCPC will be final.
      Mr. Salmond: Will the Minister confirm that it is possible under the arrangements that he is defending for a devolution case to be judged by the JCPC with no Scottish judge on that committee?
      Mr. McLeish: It is our intention that that will not happen. Our intention is to ensure that the JCPC considers issues on their merit. We are talking about issues of vires. We are not trying to introduce politics into every conceivable decision. The veiled threat from the nationalists this evening is: "Beware of the Scottish Parliament because, when we are members of that body, we will talk about cross-border public bodies and there will be trouble for the first person whom we invite who does not come." That has been stated.
      Because the constitutional court may have English judges, there is some suggestion that we cannot resolve matters as vires, that we have to politicise everything. That is a dangerous attitude. It is not constructive and it does not augur well for the good sensible government that Scotland requires from the first day the Scottish Members of Parliament are elected.
      Mr. Grieve: Does the Minister accept that I, as an English Member of Parliament, would not mind if five Scottish members of the JCPC determined such issues? That is completely irrelevant.
      7 pm
      Mr. McLeish: The point has been made. The Government have no doubt that each case will be decided on its merits after careful consideration.
      Clause 94 provides that, for this purpose, the JCPC will be composed of members who hold or have held the office of Lord of Appeal in Ordinary or high judicial office in
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      the UK. That will include the judges of the Court of Session who are Privy Councillors. It is difficult to imagine how the members of any constitutional court could be better qualified.
      The Government's approach is based on the belief that such issues should be decided as a matter of law, not of politics. Involving this House and the Scottish Parliament in the election of members of a constitutional court would inevitably politicise the process and raise questions about the independence of the court' s members—would they be genuinely free to make up their minds, or would they be beholden to the body that elected them?
      The involvement of the Lord Chancellor and the Lord Advocate—members of their respective Administrations—could also politicise the process of dispute resolution. Indeed, the suggestion that the Lord Advocate should be a member of the court ignores the fact that, as Law Officer to the Scottish Executive, he would be responsible for instituting and defending proceedings for the determination of a devolution issue. Under the model in the new clause, there would be an initial conflict of interest. It is nonsensical to suggest that he could present the case for the Scottish Executive and then rule on it.
      I was interested in whom else the SNP considers appropriate to hear such cases. Although there are many eminent advocates, solicitors and law professors with considerable experience in the legal system, I admit that the combined judicial experience of the Judicial Committee would be difficult to equal. It is hard to escape that conclusion in terms of competence in law and legal issues.
      The Government believe that there should be a mechanism to ensure independent consideration of devolution issues. In the Judicial Committee, the Bill provides that. I urge the hon. Member for Banff and Buchan (Mr. Salmond) to ask leave to withdraw the motion.
      Mr. Salmond: The Minister gave the game away. I asked him whether a case could be judged with no Scottish representative on the Judicial Committee. He replied that the Government intend to ensure that that does not happen. They can do that only by political direction on the composition of the body taking the case. He cannot have it both ways.
      Mr. McLeish: Grow up.
      Mr. Salmond: The Minister says that I should grow up, but let us examine the matter. Either the composition of the Judicial Committee would be such that it would be free to judge such cases with no concern for nationality, background or political influence or the Minister, because he has realised the sensitivity of the situation, wants at least one representative from a Scottish legal background to sit in judgment of such cases. He cannot have it both ways.
      I was incredibly surprised, but delighted in some ways, by the naivety of some hon. Members, who talked as if the judicial process were totally removed from politics. Many members of the Judicial Committee of the Privy Council held political office and owe their appointment to politics. The Minister presents a political argument

      213
      against a constitutional court and for pure judicial principle in the existing arrangements. However, that does not sustain serious examination.
      I have much more sympathy with the hon. Member for Greenock and Inverclyde (Dr. Godman) and the hon. and learned Member for Orkney and Shetland (Mr. Wallace), who said that, although a constitutional court was necessary, we should perhaps not have such a court as this and should take into account the variety of developments that are taking place. We would have accepted the principle if the Minister had said, "That's exactly what we are going to do; we are going to think about it." However, he did not say that.
      The Minister has argued that the Judicial Committee of the Privy Council—an archaic, Topsy-like institution—can accommodate such disputes. That is not the case. Its composition does not stand up to serious examination, and in such circumstances my hon. Friends and I shall most certainly press the new clause to a vote.
      This is not an independence new clause; it cannot be.
      It being two and a half hours after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to the Order [13 January] and the Resolution [this day], put forth, with the Question already proposed from the Chair.
      Question put, That the clause be read a Second time:—
      The House divided: Ayes 8, Noes 388.

      Division No. 272]

      [7.3 pm

      AYES

      Bell, Martin (Tatton)

      Salmond, Alex

      Cunningham, Ms Roseanna (Perth)

      Swinney, John

      Wigley, Rt Hon Dafydd

      Dafis, Cynog

      Tellers for the Ayes:

      Ewing, Mrs Margaret

      Mr. Alasdair Morgan and

      Llwyd, Elfyn

      Mr. Andrew Welsh.

      NOES

      Ainger, Nick

      Boswell, Tim

      Ainsworth, Robert (Cov'try NE)

      Bradley, Keith (Withington)

      Allan, Richard

      Bradshaw, Ben

      Ancram, Rt Hon Mich ael

      Brady, Graham

      Anderson, Donald (Swansea E)

      Brake, Tom

      Arbuthnot, James

      Brazier, Julian

      Armstrong, Ms Hilary

      Brinton, Mrs Helen

      Ashton, Joe

      Brown, Rt Hon Nick (Newcastle E)

      Atherton, Ms Candy

      Browne, Desmond

      Atkins, Charlotte

      Bruce, Ian (S Dorset)

      Atkinson, Peter (Hexham)

      Buck, Ms Karen

      Baldry, Tony

      Burden, Richard

      Barnes, Harry

      Burgon, Colin

      Barron, Kevin

      Burns, Simon

      Bayley, Hugh

      Burstow, Paul

      Beard, Nigel

      Butler, Mrs Christine

      Begg, Miss Anne

      Butterfill, John

      Beith, Rt Hon A J

      Byers, Stephen

      Benn, Rt Hon Tony

      Caborn, Richard

      Bennett, Andrew F

      Campbell, Alan (Tynemouth)

      Benton, Joe

      Campbell, Mrs Anne (C'bridge)

      Best, Harold

      Campbell, Menzies (NE Fife)

      Betts, Clive

      Campbell-Savours, Dale

      Blears, Ms Hazel

      Canavan, Dennis

      Blizzard, Bob

      Caplin, Ivor

      Blunt, Crispin

      Casale, Roger

      Boateng, Paul

      Cash, William

      Borrow, David

      Cawsey, Ian

      214

      Chapman, Ben (Wirral S)

      Gilroy, Mrs Linda

      Chaytor, David

      Godman, Dr Norman A

      Chisholm, Malcolm

      Godsiff, Roger

      Clapham, Michael

      Goggins, Paul

      Clappison, James

      Golding, Mrs Llin

      Clark, Rt Hon Dr David (S Shields)

      Gordon, Mrs Eileen

      Clark, Paul (Gillingham)

      Gorrie, Donald

      Clarke, Charles (Norwich S)

      Greenway, John

      Clarke, Rt Hon Tom (Coatbridge)

      Grieve, Dominic

      Clarke, Tony (Northampton S)

      Griffiths, Jane (Reading E)

      Clelland, David

      Griffiths, Nigel (Edinburgh S)

      Clifton-Brown, Geoffrey

      Griffiths, Win (Bridgend)

      Clwyd, Ann

      Grocott, Bruce

      Coffey, Ms Ann

      Grogan, John

      Cohen, Harry

      Hain, Peter

      Coleman, Iain

      Hall, Mike (Weaver Vale)

      Collins, Tim

      Hall, Patrick (Bedford)

      Corbett, Robin

      Hamilton, Fabian (Leeds NE)

      Corbyn, Jeremy

      Hammond, Philip

      Corston, Ms Jean

      Hancock, Mike

      Cotter, Brian

      Hanson, David

      Cran, James

      Hayes, John

      Crausby, David

      Heal, Mrs Sylvia

      Cryer, Mrs Ann (Keighley)

      Heald, Oliver

      Cryer, John (Hornchurch)

      Healey, John

      Cummings, John

      Heathcoat-Amory, Rt Hon David

      Cunliffe, Lawrence

      Henderson, Ivan (Harwich)

      Cunningham, Jim (Cov'try S)

      Hepburn, Stephen

      Curry, Rt Hon David

      Heppell, John

      Dalyell, Tam

      Hewitt, Ms Patricia

      Darvill, Keith

      Hill, Keith

      Davey, Edward (Kingston)

      Hodge, Ms Margaret

      Davey, Valerie (Bristol W)

      Hoey, Kate

      Davies, Rt Hon Denzil (Llanelli)

      Hogg, Rt Hon Douglas

      Davies, Geraint (Croydon C)

      Hood, Jimmy

      Davies, Quentin (Grantham)

      Hoon, Geoffrey

      Day, Stephen

      Hope, Phil

      Dean, Mrs Janet

      Hopkins, Kelvin

      Dewar, Rt Hon Donald

      Horam, John

      Dismore, Andrew

      Howard, Rt Hon Michael

      Dobbin, Jim

      Howarth, Alan (Newport E)

      Doran, Frank

      Howarth, George (Knowsley N)

      Dorrell, Rt Hon Stephen

      Hughes, Ms Beverley (Stretford)

      Drew, David

      Hughes, Kevin (Doncaster N)

      Dunwoody, Mrs Gwyneth

      Hughes, Simon (Southwark N)

      Eagle, Angela (Wallasey)

      Humble, Mrs Joan

      Eagle, Maria (L'pool Garston)

      Hunter, Andrew

      Ellman, Mrs Louise

      Hurst, Alan

      Emery, Rt Hon Sir Peter

      Hutton, John

      Ennis, Jeff

      Iddon, Dr Brian

      Etherington, Bill

      Jack, Rt Hon Michael

      Faber, David

      Jackson, Helen (Hillsborough)

      Fallon, Michael

      Jackson, Robert (Wantage)

      Fatchett, Derek

      Jamieson, David

      Fearn, Ronnie

      Jenkin, Bernard

      Field, Rt Hon Frank

      Jenkins, Brian

      Fitzpatrick, Jim

      Johnson, Alan (Hull W & Hessle)

      Fitzsimons, Lorna

      Jones, Barry (Alyn & Deeside)

      Flint, Caroline

      Jones, Ms Jenny (Wolverh'ton SW)

      Flynn, Paul

      Follett, Barbara

      Jones, Jon Owen (Cardiff C)

      Forth, Rt Hon Eric

      Jones, Dr Lynne (Selly Oak)

      Foster, Michael Jabez (Hastings)

      Keeble, Ms Sally

      Fowler, Rt Hon Sir Norman

      Keen, Alan (Feltham & Heston)

      Fox, Dr Liam

      Keetch, Paul

      Galbraith, Sam

      Kennedy, Jane (Wavertree)

      Gale, Roger

      Khabra, Piara S

      Galloway, George

      Kidney, David

      Gapes, Mike

      Kilfoyle, Peter

      Gardiner, Barry

      King, Andy (Rugby & Kenilworth)

      George, Andrew (St Ives)

      King, Ms Oona (Bethnal Green)

      George, Bruce (Walsall S)

      King, Rt Hon Tom (Bridgwater)

      Gerrard, Neil

      Kingham, Ms Tess

      Gibb, Nick

      Kirkbride, Miss Julie

      Gibson, Dr Ian

      Kirkwood, Archy

      Gillan, Mrs Cheryl

      Ladyman, Dr Stephen

      215

      Laing, Mrs Eleanor

      Prentice, Ms Bridget (Lewisham E)

      Lait, Mrs Jacqui

      Prentice, Gordon (Pendle)

      Laxton, Bob

      Primarolo, Dawn

      Leslie, Christopher

      Prosser, Gwyn

      Letwin, Oliver

      Purchase, Ken

      Levitt, Tom

      Quin, Ms Joyce

      Lewis, Ivan (Bury S)

      Quinn, Lawrie

      Lewis, Dr Julian (New Forest E)

      Radice, Giles

      Lewis, Terry (Worsley)

      Rammell, Bill

      Lidington, David

      Randall, John

      Linton, Martin

      Rapson, Syd

      Livingstone, Ken

      Raynsford, Nick

      Livsey, Richard

      Redwood, Rt Hon John

      Lock, David

      Reed, Andrew (Loughborough)

      Loughton, Tim

      Reid, Dr John (Hamilton N)

      Love, Andrew

      Rendel, David

      McAvoy, Thomas

      Robertson, Laurence (Tewk'b'ry)

      McCabe, Steve

      Roche, Mrs Barbara

      McCafferty, Ms Chris

      Rooney, Terry

      McDonagh, Siobhain

      Ross, Ernie (Dundee W)

      McDonnell, John

      Rowlands, Ted

      McFall, John

      Ruane, Chris

      MacGregor, Rt Hon John

      Ruddock, Ms Joan

      McGuire, Mrs Anne

      Ruffley, David

      McIsaac, Shona

      Russell, Bob (Colchester)

      Mackinlay, Andrew

      Russell, Ms Christine (Chester)

      Maclean, Rt Hon David

      Ryan, Ms Joan

      McLeish, Henry

      St Aubyn, Nick

      McLoughlin, Patrick

      Salter, Martin

      McNamara, Kevin

      Sanders, Adrian

      MacShane, Denis

      Sawford, Phil

      Mactaggart, Fiona

      Sayeed, Jonathan

      McWalter, Tony

      Sedgemore, Brian

      McWilliam, John

      Shaw, Jonathan

      Mahon, Mrs Alice

      Sheerman, Barry

      Malins, Humfrey

      Sheldon, Rt Hon Robert

      Mallaber, Judy

      Shipley, Ms Debra

      Mandelson, Peter

      Singh, Marsha

      Marshall, David (Shettleston)

      Skinner, Dennis

      Marshall, Jim (Leicester S)

      Smith, Rt Hon Andrew (Oxford E)

      Martlew, Eric

      Smith, Angela (Basildon)

      Mates, Michael

      Smith, John (Glamorgan)

      Meacher, Rt Hon Michael

      Smith, Llew (Blaenau Gwent)

      Meale, Alan

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

      Michael, Alun

      Snape, Peter

      Michie, Bill (Shef'ld Heeley)

      Soley, Clive

      Michie, Mrs Ray (Argyll & Bute)

      Spellar, John

      Milburn, Alan

      Spicer, Sir Michael

      Miller, Andrew

      Spring, Richard

      Moffatt, Laura

      Starkey, Dr Phyllis

      Moonie, Dr Lewis

      Stevenson, George

      Moran, Ms Margaret

      Stewart, David (Inverness E)

      Morgan, Ms Julie (Cardiff N)

      Stewart, Ian (Eccles)

      Morris, Rt Hon John (Aberavon)

      Stinchcombe, Paul

      Mudie, George

      Stott, Roger

      Mullin, Chris

      Stringer, Graham

      Murphy, Denis (Wansbeck)

      Stuart, Ms Gisela

      Norris, Dan

      Stunell, Andrew

      Oaten, Mark

      Sutcliffe, Gerry

      O'Brien, Mike (N Warks)

      Swayne, Desmond

      Olner, Bill

      Taylor, Rt Hon Mrs Ann (Dewsbury)

      Organ, Mrs Diana

      Page, Richard

      Taylor, David (NW Leics)

      Paice, James

      Taylor, Ian (Esher & Walton)

      Palmer, Dr Nick

      Taylor, John M (Solihull)

      Paterson, Owen

      Thomas, Gareth (Clwyd W)

      Pearson, Ian

      Timms, Stephen

      Pendry, Tom

      Tipping, Paddy

      Perham, Ms Linda

      Todd, Mark

      Pickles, Eric

      Touhig, Don

      Pickthall, Colin

      Trend, Michael

      Pike, Peter L

      Truswell, Paul

      Pollard, Kerry

      Turner, Dennis (Wolverh'ton SE)

      Pope, Greg

      Turner, Dr George (NW Norfolk)

      Pound, Stephen

      Twigg, Derek (Halton)

      Powell, Sir Raymond

      Tyler, Paul (Swansea W)

      216

      Tyrie, Andrew

      Vaz, Keith

      Williams, Alan W (E Carmarthen)

      Viggers, Peter

      Williams, Mrs Betty (Conwy)

      Wallace, James

      Winnick, David

      Walley, Ms Joan

      Winterton, Mrs Ann (Congleton)

      Ward, Ms Claire

      Winterton, Nicholas (Macclesfield)

      Wardle, Charles

      Winterton, Ms Rosie (Doncaster C)

      Wareing, Robert N

      Wood, Mike

      Woodward, Shaun

      Waterson, Nigel

      Woolas, Phil

      Watts, David

      Wray, James

      White, Brian

      Wright, Anthony D (Gt Yarmouth)

      Whitehead, Dr Alan

      Wright, Dr Tony (Cannock)

      Whittingdale, John

      Wyatt, Derek

      Wicks, Malcolm

      Widdecombe, Rt Hon Miss Ann

      Tellers for the Noes:

      Wilkinson, John

      Janet Anderson and

      Williams, Rt Hon Alan

      Mr. Jim Dowd.

      Question accordingly negatived.

    Schedule 1

      CONSTITUENCIES, REGIONS AND REGIONAL MEMBERS
      Mr. Wallace: I beg to move amendment No. 61, in page 53, line 9, at end insert—
      '(1 A) The parliamentary constituencies to which paragraph 1(c) applies are those determined by the Parliamentary Constituencies (Scotland) Order 1995, or those Scottish Parliamentary constituencies determined following a report of the Boundary Commission for Scotland as determined by paragraph 3 of this Schedule, except a parliamentary constituency including either of those islands referred to in paragraphs 1(a) and 1(b).'.
      Mr. Deputy Speaker (Mr. Michael J. Martin): With this, it will be convenient to discuss the following amendments: No. 62, in page 53, leave out lines 15 to 17.
      No. 63, in page 53, leave out lines 18 to 37 and insert—
      'Redistribution of Scottish Parliamentary constituencies—

      3. (1) The Boundary Commission for Scotland shall keep under review the representation in the Scottish Parliament and shall submit to the Scottish Executive a report either:

      (a) showing the constituencies into which they recommend that Scotland should be divided in order to give effect to the rules set out in Schedule 2 (subject to paragraph 7 thereof) to the Parliamentary Constituencies Act 1986 (hereinafter referred to as the 1986 Act) in so far as they apply to Scotland, or

      (b) stating that, in the opinion of the Commission, no alteration is required to be made in order to give effect to the rules set out in Schedule 2 to the 1986 Act (subject to paragraph 7 thereof).

      (2) Notwithstanding the provisions of section 81 of this Act, the rules in Schedule 2 of the 1986 Act as they apply to Scotland shall have effect in relation to the redistribution of the Parliamentary constituencies in paragraph 1(c).

      (3) Subject to sub-paragraph (5), the provisions in sections 3, 5 and 6 of the 1986 Act shall, in so far as they apply to Scotland, have effect in relation to the reports and the workings of the Boundary Commission for Scotland's review of Parliamentary constituencies for the Scottish Parliament.

      (4) Subject to sub-paragraph (5), the provisions in section 4 of the 1986 Act shall have effect in relation to the draft of any Order in Council laid before the Scottish Parliament by the Scottish Executive for giving effect, whether with or without modifications, to the recommendations contained in the report of the Boundary Commission for Scotland.

      (5) References to the Secretary of State in the 1986 Act shall, for the purposes of this paragraph, be construed as references to the Scottish Executive and references to "Parliament" in the 1986 Act shall be construed as references to the Scottish Parliament.

      217

      (6) The Boundary Commission for Scotland shall submit its first report under this paragraph to the Scottish Executive no later than 30th June 2005.

      (7) In that report, the Commission shall also recommend any alteration in any of the regions which, in their opinion, is required to be made in order to give effect to the rules in paragraph 7.

      (8) If the Commission do not make any such recommendation under sub-paragraph (7), they shall in the report state that, in their opinion, no such alteration is required.

      (9) A report making a recommendation for an alteration in any region shall state the name by which the Commission recommend that the region should be known.'.

      No. 64, in page 53, leave out lines 38 to 43.
      No. 65, in page 53, line 46, leave out '3(2)' and insert '3(7)'.
      Mr. Wallace: The scheme proposed in the Bill is designed principally to take account of the fact that the Government have recognised the need to reduce the number of Scottish Members at Westminster following the establishment of the Scottish Parliament. It also provides for the number of Members of the Scottish Parliament to be reduced to reflect the Westminster constituencies under the first-past-the-post system, and for a pro rata reduction in the number of additional Members in the various regions.
      The purpose of the amendment and those associated with it is to retain for the Scottish Parliament the 73 constituencies that exist under the first-past-the-post system and the seven additional Members in each of the eight regions. To achieve that, it would establish a boundary commission for Scotland, whose remit would be to review the 73 Scottish parliamentary constituencies. There are obviously population movements within those constituencies, and it would be important to ensure that those electorates remained of a relatively similar size.
      Dr. Godman: In the current addition of The Scottish Review, the author of a paper argues that it is almost inevitable, over time, that the number of Scottish MPs in this House will be radically reduced, and that the number of MSPs in the Edinburgh Parliament is also likely to be reduced in the next decade or so.
      Mr. Wallace: I think that the hon. Gentleman refers to an article by Mr. John Curtice of Strathclyde university, on which I propose to comment.
      Our amendments would retain the separate seats for Orkney and Shetland that are set out in the Bill. I acknowledge the Government's delivery of a commitment at the Scottish Constitutional Convention. When a similar provision was moved in Committee, we said that 129 Members—a figure that was struck after some debate in the convention—were needed so that, after the appointment of Ministers, there were sufficient Members to ensure the establishment of committees.
      There is to be a range of committees, such as pre-legislative, departmental and regional. If there is time, my hon. Friend the Member for Edinburgh, West (Mr. Gorrie) will move an amendment on that topic. About 129 Members are required to fulfil all the Parliament's functions, and reducing the number to 104 or 105 would affect its workings.
      218
      As the Member for Greenock and Inverclyde (Dr. Godman) said, the number of Members could be substantially reduced as a result of the boundary commission's proposal. The article by John Curtice is far too technical to convey to the House in a short speech, but it shows that the number would creep up because of electoral quotas. The article is entitled "Reinventing the Yo-Yo", and shows that the number of Members will come down and then go back up. It states:
      "Far from securing a permanent reduction in the size of the Scottish Parliament, the provisions are likely to result in a Parliament which after a once and for all cut is likely to start gradually increasing in size such that by the middle of the next century it could well have returned to its original size."
      We are trying to retain some stability because that is important for the working of the Parliament. Its stability would not be helped if, after three or four years, a quarter of its Members thought that a sword was hanging over them because seats were about to disappear. That would lead to tension and rivalries, and might distract Members of the Scottish Parliament from the work in hand. It would not be healthy for the Parliament.
      We do not know what will happen here in future. The Government have set up an electoral commission under the chairmanship of my noble Friend Lord Jenkins of Hillhead to look at different systems of proportional representation. We hope that there will be such a system for elections to Westminster sooner rather than later, and that would have consequences for the Scottish Parliament if it continued to reflect the Westminster model.
      Dr. Godman: There may be a new assembly in Northern Ireland, and the Scottish Parliament and the two assemblies may have constituencies that are radically different in size. Is the hon. and learned Gentleman perfectly relaxed about that?
      Mr. Wallace: At the moment, some constituencies vary substantially in size. I am not sure what is envisaged in terms of Northern Ireland representation in the House following the establishment of an assembly. We may be about to embark on a substantial change in the way that the Westminster Parliament is elected.
      If an additional member system were adopted, there could not possibly be 659 constituencies, because a massive number of top-ups, additional Members, would make the House unwieldy. We need to examine different sizes of constituencies—hence the need for a separate system for Scotland to secure the sort of agreement that was reached at the constitutional convention and is enshrined in the Bill.
      Those of us who were in the convention foresaw that there might be changes. In our agreement, which was headed "Scotland's Parliament—Scotland's Right", we said:
      "The electoral system for Scotland's Parliament must have stability but it will, of course, be dependent on boundaries established for the Westminster and European Parliaments."
      The European Parliament boundaries have disappeared because of the move to proportional representation.
      The document continues:
      "These may be subject to alteration outwith the control of Scotland's Parliament and it will therefore be necessary to ensure that separate boundary reviews for the Parliament can be carried through with the purpose of maintaining the size of the Parliament

      219
      and the integrity of the corrective effect of the additional members. This function will be performed by the Boundary Commission for Scotland."
      That is precisely what the amendments seek to do—to retain a Parliament of 129 Members irrespective of a change in the number of Scottish Members at Westminster.
      When the matter was raised in Committee, the Minister said:
      "there are arguments on both sides, but we believe that the Bill strikes the right balance. I am mindful that he might not wish to press the amendments to a vote this evening; if that is the case, we shall have a chance to look further at the arguments involved."—[Official Report, 28 January 1998; Vol. 305, c. 456.]
      I am grateful to the Minister for looking further. I hope that my arguments in Committee and here will prove to be compelling.
      Mr. Dalyell: It may have occurred to Ministers by now that I am no friend of the legislation. However, even I am not so ill disposed as to wish to see a reduction in the number of Members in the Edinburgh Parliament. Imagine it: within a week of the election, Members would be eyeing one another and wondering what would happen five years hence. Understandably, people would begin to fight for position like Kilkenny cats, because they would know that, at the end of five years, a quarter of them would be axed.
      The ill feeling that such knowledge would create from the beginning, and the sickly personal relations that would follow, would be extremely undesirable. I hope that whatever number is chosen is kept up. If there is to be a Parliament, there should be 142 Members to start with, but that is all water under the bridge. The expectation of a reduction is a recipe for such sour ill will that it would be to the advantage of none of us in Scotland.
      Mr. Alasdair Morgan: I have two comments. The first is the obvious one that would be made by any man or woman in the street: if 129 Members is reasonable for the Parliament next year, why would it be unreasonable in 10 or 20 years? Why on earth should we start to change the boundaries of a devolved Scottish Parliament simply because there is an argument for changing the Westminster constituencies?
      The second issue is more serious. There are two types of Member in the Scottish Parliament and the number of list Members, even under the present system, goes a fair way towards ensuring proportionality, although the precise amount that will be achieved will depend on the results. Nobody can predict how much proportionality will be realised. To some extent, the amount of disproportionality may be increased because there are to be eight regional lists rather than one national list.
      To achieve proportionality, it is necessary to have enough top-up seats to even out the imbalances. If the number of available top-up seats is reduced, there is a strong likelihood that proportionality will be diminished, even if first-past-the-post seats are also reduced. We will be back to a much more first-past-the-post system than is proposed in the legislation. Given that one of the main arguments of the people who introduced the legislation was that it did include a very high element of proportional representation, it seems strange that they now accept something that will almost inevitably reduce proportionality.
      7.30 pm
      Mr. Bernard Jenkin: Reflecting on the comments of the hon. Member for Galloway and Upper Nithsdale (Mr. Morgan), I think that we do well to remind the House that a degree of proportionality is not predictable under the hybrid additional member system that we are adopting for the Scottish Parliament. It remains to be seen how proportionally fair the electoral system is compared with a first-past-the-post system.
      I draw the House's attention to the comment by the Minister in reply to the previous debate on this subject in Committee, to which the hon. and learned Member for Orkney and Shetland (Mr. Wallace) has alluded. The Minister said that the Bill "strikes the right balance". I compare that with the all too sensible analysis of what is likely to happen by the hon. Member for Linlithgow (Mr. Dalyell). What we have here is far short of the stability that the Scottish Parliament will look for and that Scottish people have a right to expect from the Parliament.
      I remind the House that, in Committee, we tabled an amendment to deal with this problem, which was logical in view of the Government's original intentions as expressed in the White Paper. The amendment would change the constituency boundaries before the first elections to the Scottish Parliament, so that the number of MSPs that the Scottish Parliament started with would be the same as the number that it continued with. The representation in the House would be reduced as soon as it was re-elected at a subsequent general election. As I say, what we are left with in the White Paper is just a mess, with 129 MSPs first being selected and then cut.
      These amendments give the Scottish Parliament the opportunity to decide whether to maintain the present number or to change the number of constituencies. The key question is: who is to decide the criteria for the Scottish boundary commission? Effectively, that commission will work for two masters. If the brief drawn up for it is analogous to that of the boundary commission that already exists, it will have to have regard to the Westminster constituencies as much as to local government boundaries. There will be confusion as to which is paramount: the Westminster constituencies or the Scottish parliamentary constituencies.
      In any case, the Minister, by announcing that the Government are looking to review this—I should be grateful if he would confirm that the Government do intend to table amendments in the other place—shows that this part of the White Paper is extremely ill thought out and ill considered. Whatever the Government now recommend, either here or in the other place, to set this matter straight, it will be a departure from the White Paper.
      Dr. Godman: I have some sympathy for a couple of the comments by the hon. Member for North Essex (Mr. Jenkin) on the likely composition of the Edinburgh Parliament. I should not like to guess it. I do not at this moment have much idea at all. The question of proportionality is a different matter. I personally favour the sort of electoral system that we will have for that Parliament. I have always opposed the first-past-the-post system.
      The new system will, of course, be of some advantage to the party of the hon. Member for North Essex. As I have said many times, we have an absurd set of

      221
      circumstances concerning this place. About 500,000 Scots voted for Conservative candidates, yet neither the Scottish Conservative party nor those Scots are represented in this Parliament. For all its flaws and loose ends, the system proposed for the new Parliament is much better than the system we have for this place.
      I am not altogether arguing that the number of MSPs should in the near future be reduced. I am concerned just about the size of the constituencies represented by MSPs.
      I think, for example, if I might digress just for about 14 seconds, that the number of representatives proposed for the Northern Ireland assembly is too high. People say, "Yes, but we are talking there about special circumstances." However, I thought that the aim would be to bring that assembly as near as we could to the normal, everyday life of other assemblies and Parliaments elsewhere in the United Kingdom. It may be that, as the hon. Member for North Essex, who speaks on behalf of the official Opposition, says, it should be left to the Scottish Parliament to determine these matters—for example, how many Members should be in that place.
      I say to my hon. and very old Friend the Member for Linlithgow (Mr. Dalyell): I am not particularly concerned about the feelings of the Members of that assembly. I might be if I were one of them and facing the disappearance of my constituency, but I am never going to be in that position. The Parliament has been created for the better governance of Scotland, not to meet the needs, aspirations and concerns of those who will be in that Parliament.
      Mr. Dalyell: The better governance of Scotland is not going to be served if Members of the Parliament fight for position like ferrets in a sack, as they assuredly will.
      Dr. Godman: We have seen some of that fighting in parties in this place. It is epitomised by the chicken run and people squabbling over boundary changes. I have seen a little of that in Renfrewshire in recent years.
      I have some sympathy for the object of the amendments, but, at the same time, the hon. Member for North Essex is absolutely right: these matters must be left to the Members of Parliament in Scotland. At the same time, I caution against the idea that the figure we now have is in some way sacrosanct. Over time, the number of MSPs, or of representatives or deputies—whatever they are called—going into the Northern Ireland assembly, will change. There will be a change in the number of Scots Members in this place.
      As I have said, in a general sense, we are, in an unco-ordinated way, moving towards a federal system. I note that more and more Tory Members believe that—
      Mr. Jenkin: "Unco-ordinated" is the word.
      Dr. Godman: I think it is. We are moving along that road. The hon. Member for Epping Forest (Mrs. Laing) shakes her head vehemently. I do not think that she wants Scotland to move in any way from the UK. I think that her heart is in a Scottish constituency somewhere, but that is another story.
      Mr. Alasdair Morgan: Does the hon. Gentleman accept the point that I was trying to make: the more we
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      reduce the overall number and the first-past-the-post and list Members pro rata, the less likely we are to achieve a proportional outcome in any given election?
      Dr. Godman: I agree, and I thought that the hon. Gentleman put his case intelligently and concisely. We do have problems relating to proportionality. There are problems with any system that we think of. God forgive us for thinking about the Knesset and the dreadful system of proportional representation there. I would not inflict the Irish system on a Scottish Parliament or on the assembly that is to be created in the six counties. However, the system proposed—even if the numbers are reduced—for all its loose ends, is much better than what we have in this place. Although there may be a reduction in the number of MSPs, it will still be a better and fairer system than the ridiculous, anachronistic system for electing hon. Members to this place.
      Mr. John Hayes: The hon. Member for Linlithgow (Mr. Dalyell), not for the first time, exercised a degree of profound observation which has partly stolen my thunder. I agreed with many of his comments—in stark contrast to those of the hon. and learned Member for Orkney and Shetland (Mr. Wallace).
      I never cease to be amazed at the Liberal Democrats' ability to pursue facile policies. We heard another example of that ability today. I say that more in sorrow than in anger—no, to be absolutely frank, I say it more in anger than in sorrow. Nevertheless, we learned in the local government elections the electorate's opinion of the Liberal Democrats, who were given just the consolation prize of Liverpool.
      The important aspect about this group of amendments is that they would cause damage in three ways. First, as my hon. Friend the Member for North Essex (Mr. Jenkin) said, they are uncertain and unclear about the boundary commission for Scotland's terms of reference. Who will determine the commission's remit, and what will that remit be?
      Mr. Wallace: Will the hon. Gentleman please look at amendment No. 63, which states:
      "to give effect to the rules set out in Schedule 2 … to the Parliamentary Constituencies Act 1986"?
      Those are the rules that will apply.
      Mr. Hayes: I am delighted by that observation, as it shows that, occasionally, even the facile can have an eye for detail.
      Secondly, the inconsistency established by the potential—I accept that there is only a potential—of establishing in Scotland constituencies of a different size from those at Westminster, and the electorate's consequential confusion, will be a nightmare. If the Scottish Parliament—about which I certainly have reservations—is to have credibility, there must be some clarity and comprehensibility about it in the eyes of the electorate.
      The notion of different-sized constituencies for elections to Westminster and to the Scottish Parliament is nonsense. Can hon. Members imagine how that would affect political parties and political associations—which, regardless of party, are based on Westminster constituencies? All hon. Members will know that European elections already cause

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      sufficient difficulty. European elections, because of different-sized constituencies, cause confusion and complications not only for the Conservative party but for the Labour party, and probably even for the Liberal Democrats. Creating another size of constituency would cause an organisational nightmare.
      Mr. Alasdair Morgan: I wonder whether the hon. Gentleman might help me by defining the nature of the confusion that will be caused in the minds of the electorate. If I as an elector have one person as my MSP and someone else as my MP, and someone five miles down the road shares the same MP but has a different MSP, how will I be confused? What is the problem?
      Mr. Hayes: Surely the nature of the political process makes it important that people should know in which constituency they are electors and constituents. Electorally, we have had great difficulty at all levels, from local government upwards, in establishing in the minds of constituents and electors in which area they reside, who represents them and the functions performed by their representatives at the various tiers. Establishing those facts is a fundamental part of establishing a relationship between the elector and the elected, is it not?
      Mr. Tim Collins: My hon. Friend is making an excellent point. Will he reflect on the media's effect on that confusion? The newspapers that voters will read, and the television news that they will see, will refer variously either to an elector's MP or to his MSP, further aggravating the confusion that my hon. Friend has described.
      Mr. Hayes: I am grateful to my hon. Friend, and I entirely agree with his excellent illustration of the point that I was making.
      I am not surprised that Liberal Democrat Members are unimpressed by that argument, as their party believes in proportional representation—which would cause a break in the link between the elector and the elected, which is what it would mean. Proportional representation would end the appropriate sense of ownership that electors have for their representatives, and we representatives for our constituencies.
      History, and the electorate, will judge very harshly anyone involved in breaking that bond, which is one of the most valuable and important elements in our democratic system. In relation to the Scottish Parliament, this group of amendments goes down that road.
      If we are to have a Scottish Parliament and a Welsh assembly, let us make them work well. As the hon. Member for Linlithgow said, it would be nonsense for us, as responsible Members of this Parliament, to get the project off in a fashion that doomed it right from the beginning. If we are to have a Scottish Parliament, let us establish a structure and system that gives it some credibility, and not indulge irrelevant, minority and fringe parties.
      7.45 pm
      Mr. McLeish: As the hon. and learned Member for Orkney and Shetland (Mr. Wallace) suggested, early in the Committee stage the Government responded to some of the very positive arguments that were made on the link
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      between Scottish parliamentary and United Kingdom parliamentary constituencies, and on the number of Members of the Scottish Parliament.
      The hon. Member for Galloway and Upper Nithsdale (Mr. Morgan) made a point on the list system. We are not dealing with an easy matter, as we are dealing not with a first-past-the-post system but with a system in which 73 MSPs will be elected on a first-past-the-post basis, and in which there will be 56 additional Members. The arguments are therefore very complex.
      Currently, the Government cannot accept amendment Nos. 61 to 65, which would seek to break the link between constituencies for the UK Parliament and constituencies for the Scottish Parliament. As I said earlier in the debate, hon. Members will recall that we considered similar amendments in Committee.
      In Committee, the hon. and learned Member for Orkney and Shetland made a strong and very reasoned case to retain the size of the Scottish Parliament at 129 members. I agreed then—the point has been confirmed in this debate—that the Government would reflect carefully on the issues that he raised.
      My right hon. Friend the Secretary of State for Scotland and I have thought long and hard on those matters. We understand the arguments in favour of maintaining the Parliament's size, but we also believe that the Parliament could operate effectively with fewer Members, and that there are good arguments for maintaining the linkage in constituencies. Nevertheless, my hon. Friend the Member for Linlithgow (Mr. Dalyell) has made a valid point. Projecting ahead, we must consider the possible realities of Scotland after the devolution settlement, and within the Scottish Parliament once its 129 Members are elected.
      In the White Paper, we explained that we believed that the Union's integrity would be strengthened by having common constituencies for the Scottish Parliament and for the United Kingdom Parliament, with the exception of Orkney and Shetland. Having constituencies that cover the same geographical area will help to encourage liaison between MPs and MSPs in ensuring that the interests of their common electorate are served properly in whichever Parliament is responsible for an issue. Good working relationships between Members of the Scottish Parliament and Westminster will be essential if devolution is to be a success. Contiguous boundaries would have gone some way in ensuring that success.
      Over time, the effect of this group of amendments could lead to different parliamentary constituencies for the Scottish Parliament and the UK Parliament, with overlapping boundaries leading—in some people's judgment—to confusion among the electorate. Although that point has been highlighted in the debate, I cannot agree with some of the latter comments on the electorate's confusion.
      I do not think that the electorate are as confused as some hon. Members think. Because hon. Members are concerned about boundaries, we assume that the electors also are concerned. However, electors in my constituency are a very sharp, bright bunch—which they demonstrate at every election, by voting in a very superior way.
      Mr. Hayes: The Minister was obviously referring to my speech. Does he not agree that, under our two-tier local government system, for example, there was massive confusion among the electorate about their various local

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      representatives in district councils, county councils and regional councils? It took 20 years to dissipate that confusion. Therefore, although I do not underestimate the electorate, surely the Minister will agree that changes in political structure can have a devastating effect on people's understanding of who represents them, and of which authorities do what.
      Mr. McLeish: I am sure that, after this debate, the hon. Gentleman and I could discuss the fact that change creates some confusion and some concern. However, we should not use the word "devastating".
      Since 1974, we have had a two-tier system of local government, introduced unitary authorities and created European electoral boundaries. We have Westminster parliamentary boundaries, and will soon have elections to the new Scottish Parliament. We should never underestimate the electorate, because the system has worked.
      Under two-tier local government, and now unitary authorities, excellent services have been and are provided. People are less concerned with maps and boundaries than they are with the quality of political contribution and of services. Yes, there is an issue, but we would do well to keep it in perspective.
      I am sure that, once the Scottish Parliament is established and its working practices are in place, it could operate effectively with fewer MSPs. Fewer Members would still be able to carry out the essential scrutiny of the Scottish Administration and the enactment of legislation.
      As this short debate has highlighted, there are clearly good arguments on both sides of the issue. For the reason that I have explained, there is a good argument for maintaining linkage in constituencies. We are still considering the matter, and we hope to reach a conclusion by the time that the Bill goes to another place.
      Mr. Dalyell: Here am I defending the interests of Members of the Scottish Parliament. It is very unfair to put them in the position of fighting like Kilkenny cats, squabbling like ferrets in a sack and having the sword of Damocles over them from the very beginning. To put it bluntly, we have the prospect of repeating what happened over Glasgow, Central 30 or 40 times over, writ large from the beginning. Is that fair on the people involved?
      Mr. McLeish: With the greatest respect, I do not want to embrace my hon. Friend's extravagant tones concerning ferrets and cats. I think that I have captured the essence of the argument. If we establish a Parliament of 129 Members, there is an expectation that they might want to continue. That is why addressing the realpolitik of the Parliament is part of the wider consideration.
      With those few remarks, I hope that the hon. and learned Member for Orkney and Shetland will withdraw his amendment, and allow us to complete that consideration.
      Mr. Wallace: The debate has been useful, particularly the observations and the extended metaphors of the hon. Member for Linlithgow (Mr. Dalyell), which illustrated the kind of circumstance that would all too readily arise in the Scottish Parliament if a quarter of
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      its Members had a death sentence hanging over them. Of course, they would not know which quarter that would be, which would make the ferrets in the sack scramble even more.
      The hon. Member for Galloway and Upper Nithsdale (Mr. Morgan) made the important point that, although the Government have, to be fair, preserved the 73:56 ratio, the ratio tends to be less proportional when it is applied to fewer people.
      I note what the Minister has said. I am encouraged by his remarks—not least his opening comment that the Government could not accept the amendments at present. No doubt my hon. and noble Friends in another place will seek to table them again to ensure that we do not lose sight of the issue. I beg to ask leave to withdraw the amendment.
      Amendment, by leave, withdrawn.

    Clause 4

      CANDIDATES
      Mr. McLeish: I beg to move amendment No. 26, in page 3, line 12, at end insert—
      '( ) A registered political party's regional list has effect in relation to the general election and any vacancy occurring among the regional members after that election and before the next general election'.
      Mr. Deputy Speaker: With this, it will be convenient to discuss the following amendments: Government amendment No. 27.
      No. 10, in page 3, leave out lines 33 to 35.
      No. 109, in clause 5, page 3, line 37, at end insert—
      '[1A] A registered party's regional list must be displayed in a prominent position at each polling place for inspection by any voter.'.
      No. 3, in page 3, line 39, after 'may', insert
      '(subject to subsection (4) below)'.
      No. 11, in page 3, line 40, leave out 'a "regional', and insert 'an "additional member'.
      No. 12, in page 3, line 40, leave out from 'vote' to end of line 42.
      No. 66, in page 3, line 41, after '(a)', insert
      'a candidate who is a member of'.
      No. 13, in page 4, leave out lines 1 to 3.
      No. 4, in page 4, line 3, at end insert—
      '(4) Where an elector gives his vote under section 1(2) for a candidate representing a registered political party, he shall be deemed to have given his additional member vote under this section for the same registered political party and that vote shall be counted accordingly.'.
      No. 14, in clause 6, page 4, line 9, leave out 'regional'.
      No. 15, in page 4, line 9, leave out second 'the', and insert 'constituency candidates of that'.
      No. 67, in clause 7, page 4, line 28, leave out from 'order' to 'except' in line 29 and insert
      'of the number of votes cast for the candidates, with the candidate with the highest number of votes being elected first and so on'.
      Government amendment No. 28.

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      No. 17, in clause 8, page 5, line 4, leave out from second 'the' to 'within' in line 5, and insert 'vacancy occurs'.
      Government amendments Nos. 29 and 30.
      No. 68, in clause 9, page 5, line 26, leave out from 'them' to end of line 27 and insert
      'received the greater number of votes.'.
      No. 16, in page 5, leave out lines 32 and 33 and insert—
      '(7) A vacancy in the seat of a regional member shall not be filled if it occurs within the period of three months ending with the day on which the poll at the next general election would be held, disregarding section 2(5).'.
      No. 71, in clause 10, page 5, line 42, at end insert—
      '(1A) For the purposes of an election for membership of the Parliament section 1(c) of the Representation of the People Act 1983 shall have effect with "16" substituted for "18".'.
      No. 18, in page 5, line 44, after 'constituency', insert 'or regional'.
      No. 19, in page 5, line 44, leave out from 'member' to the end of line 1 on page 6.
      Government amendments Nos. 31 to 34.
      No. 69, in schedule 5, page 62, line 11, leave out 'except the franchise'.
      No. 70, in page 62, line 11, at end insert—
      'Section 1(c) of the Representation of the People Act 1983 (the minimum voting age for elections to the Parliament)'.
      Mr. McLeish: In view of the number of amendments that other right hon. and hon. Members have tabled, I shall try fairly quickly to explain the purpose behind the Government amendments. At this stage, I shall not comment on the other amendments in the group, but with your permission, Mr. Deputy Speaker, I will deal with them if I get an opportunity to wind up the debate.
      Amendment No. 26 makes provision for a party list to have effect in relation to a general election to the Parliament and to any vacancy occurring among regional Members after that election and before the next general election. That makes it quite clear that vacancies for regional Members will be filled from the list presented to the electorate at the general election.
      Amendment No. 27 makes it clear that a registered party's list of candidates for the purposes of the election of regional Members could contain only one name if the party so wishes.
      I turn to amendments Nos. 28, 29 and 30. Amendment No. 28 effectively provides that, where a person on a party's list is returned as a Member, that person should be removed from that list so that he or she would not thereafter be available to fill a vacancy. That corrects a possible anomaly, whereby a Member loses his or her seat through failure to take the oath or by disqualification, but because his or her name is still on the party list, he or she would arguably be entitled to be returned to the Parliament again. If a Member refused to take the oath or was disqualified, he or she should not be considered by the returning officer, and under the amendment, could be removed from the list.
      Amendment No. 34 ensures that the order to be prepared under clause 11 can make detailed arrangements for what will happen if two regional parties or individual candidates get the same number of votes. It will also enable the order to regulate the filling of regional
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      vacancies. For example, it has been pointed out that, as the Bill stands, a candidate on a party's regional list who had subsequently resigned from the party could still be returned to fill a vacancy that subsequently arose. That would clearly be absurd.
      The House may be interested to learn that we have established a working group involving the four main parties in Scotland, electoral administrators and returning officers to consider the detailed arrangements for the elections. The group will be of assistance to the Scottish Office in preparing the order.
      Amendments Nos. 33 and 32 simply improve the drafting of the Bill. I urge the House to accept the Government amendments.
      Mr. Ancram: All the Government amendments seem to be moving in a sensible direction, so I shall not comment on them in depth, except to say that here we are again dealing with clause 4, which refers to enactments providing for the registration of political parties, yet we have still not seen the draft legislation. I have protested before about this; it is outrageous. Three Bills have gone through the House without our having seen the draft legislation. We were promised it at the end of March, then soon after Easter. Now, it is the middle of May, and we still have not got it. I register once again a strong protest about that.
      The main Conservative amendment, No. 4, relates to the question of split-ticket voting, to which I have referred before. Under the present system, it is possible, by registering a different party name from that under which candidates stand in direct elections, to enhance the number of seats won. I have given figures previously to indicate how that can be done. It is a way of manipulating the system against the spirit of proportionality, and is of considerable concern.
      For instance, if last May's figures for the Glasgow electoral region were replicated exactly under the additional member system, Labour would have won 10 seats on direct elections and two on the list system—a total of 12. The Scottish National party would have won three seats on the list—a total of three—and the Conservatives and the Liberal Democrats would have won one each on the list.
      If a party splits its ticket and uses an alter ego party, such as the Co-operative party, which the hon. Member for Glasgow, Pollok (Mr. Davidson) has mentioned, and candidates do not stand under Labour on the list system, a totally different picture emerges. Labour would win 10 seats on direct elections and six on the list under the Co-operative party banner. The SNP would win one list seat and the other two parties would win none.
      The Secretary of State shakes his head, but that analysis was done by a very senior political lecturer in Aberdeen on behalf—I understand—of the Labour party. It shows that there is a fault. Having tried other methods, we are simply trying in amendment No. 4 to get around the problem by having not two votes but one, so that the vote cast in direct elections for a candidate would count for that candidate's party on the indirect list. That would avoid party manipulation. I admit that it produces a result that would not allow for individual candidates on the

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      regional list, but I hope that the Government will consider it seriously as a way in which to get away from a very dangerous weakness in the system.
      Mr. Dalyell: If I am no friend of this Bill, I am an enemy of lists—partly for the reasons that were eloquently given in an earlier debate by the hon. Member for New Forest, West (Mr. Swayne).
      I must be one of the few who has seen lists in action. It was when I was exiled to the indirectly elected European Parliament and had friends in the Social Democratic party. They were good politicians and good people, but whenever it came to a crunch issue, their judgment was determined by the reaction back home of Herbert Wehner, who was then the all-powerful floor leader of the SDP. I thought that it was absolutely humiliating for Members of the European Parliament to say, as they did, "Yes, we would like to vote one way, but we cannot anger Herbert Wehner." I know why they could not anger him—he was extremely tough. However, he had absolute power as to where individuals would come on the list next time around.
      If there is to be a Scottish Parliament—it is possibly water under the bridge now—there should be 142 or 143 Members, giving gender balance. There should be two Members in each constituency—taking into account Orkney and Shetland—and we should leave it at that. Lists will create endless difficulty and a lot of rancour.
      8 pm
      Mr. Gorrie: We have tabled a number of amendments, covering two particular points. First, we propose to make the closed-list system an open-list system. Under the Bill, after putting an "X" for their first-past-the-post constituency Member, the voters would put an "X" against the name of the party they support.
      We propose that they should put the name of a candidate of the party that they support on the list. Candidates on that list would be elected in order of the number of votes they received from the electorate. The electorate would choose who got in from the party's list, rather than the party managers. We feel that that would be much more democratic, as a closed list gives too much appearance of manipulation by the party and leads to the sort of thing that the hon. Member for Linlithgow (Mr. Dalyell) mentioned.
      Secondly, we should consider having votes at 16, rather than 18. The age of voting has come down, and there was a time when women were considered suitable to vote only at 25. The age was moved to 21, and then to 18. There are some countries whose voting ages are less than 18. There is a greater rapidity of maturity among young people, many of whom show great interest in politics. The decisions of the Parliament will affect them greatly, and we should consider a voting age of 16. There is no doubt that our amendment will not be carried today, but it is a marker and we should pursue that issue. I hope that the Minister will consider both those matters favourably.
      Mr. Hayes: The hon. Gentleman's argument about the greater maturity and understanding of young people is
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      extremely interesting. Given the different rates at which men and women mature—young women mature much faster than young men—and given the fact that young women do much better academically at a much earlier age, would his party go as far as—
      Mr. Deputy Speaker: Order. I must point out to the hon. Gentleman that this is a time-limited debate, and we should not go down that route.
      Mr. McLeish: Unfortunately, I have one minute to deal with a number of outstanding amendments and I will have to write to individual Members to respond to the debate. I hope that the House will accept that proposition in good faith, rather than having me start and finish in roughly 30 seconds.
      Amendment agreed to.
      It being three and a half hours after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to the Order [13 January] and the Resolution [this day], put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
      Amendment made: No. 27, in page 3, line 13, at end insert
      '(but the list may include only one person)'.—[Mr. McLeish.]

    Clause 7

      ALLOCATION OF SEATS TO REGIONAL MEMBERS
      Amendment made: No. 28, in page 4, line 29, leave out from 'list' to end of line 30 and insert—
      '( ) For the purposes of this section and section 9, a person in a registered political party's regional list who is returned as a member of the Parliament shall be treated as ceasing to be in the list (even if his return is void)'.—[Mr. McLeish.]

    Clause 9

      REGIONAL VACANCIES
      Amendments made: No. 29, in page 5, line 22, leave out 'was' and insert 'is'.
      No. 30, in page 5, line 22, leave out from 'list' to 'and' in line 23.—[Mr. McLeish.]

    Clause 11

      POWER TO MAKE PROVISION ABOUT ELECTIONS
      Amendments made: No. 31, in page 6, line 16, leave out 'and'.
      No. 32, in page 6, line 17, after 'where' insert 'the poll at'.
      No. 33, in page 6, line 18, leave out 'countermanded or abandoned' and insert
      'abandoned (or notice of it is countermanded)'.
      No. 34, in page 6, line 19, at end insert
      'and
      ( ) for modifying section 7(6) to ensure the allocation of the correct number of seats for the region.
      ( ) The provision that may be made under subsection (1)(c) includes, in particular, provision modifying section 9(4) and (5)'.—[Mr. McLeish.]

    Clause 14

      DISQUALIFICATION FROM MEMBERSHIP OF THE PARLIAMENT
      Amendments made: No. 35, in page 7, line 13, leave out 'holds an office' and insert 'is an office-holder'.
      No. 36, in page 7, line 15, leave out
      'A person who holds an office'
      and insert 'An office-holder'.
      No. 37, in page 7, line 18, leave out 'that office' and insert 'the office-holder'.
      No. 38, in page 7, line 18, at end insert—
      '( ) In this section "office—holder" includes employee or other post—holder.'.—[Mr. McLeish.]

    Clause 16

      EFFECT OF DISQUALIFICATION
      Amendment made: No. 128, in page 8, line 6, at end insert—
      '( ) Subsection (2) also has effect subject to section 141 of the Mental Health Act 1983 (mental illness) and section 427 of the Insolvency Act 1986 (sequestration etc); and where, in consequence of either of those sections, the seat of a disqualified member of the Parliament is not vacant he shall not cease to be a member of the Parliament until his seat becomes vacant but—

      (a) he shall not participate in any proceedings of the Parliament, and

      (b) any of his other rights and privileges as a member of the Parliament may be withdrawn by a resolution of the Parliament.'.—[Mr. McLeish.]

    Clause 20

      SCOTTISH PARLIAMENTARY CORPORATE BODY.
      Mr. McLeish: I beg to move amendment No. 39, in page 9, line 18, leave out from first 'the' to end of line 20 and insert
      'functions conferred on the corporation by virtue of this Act or any other enactment'.
      Mr. Deputy Speaker: With this, it will be convenient to discuss Government amendment No. 49.
      Mr. McLeish: The Scottish parliamentary corporate body will oversee the administration of the Parliament. It will have a general duty to provide the Parliament with the property, staff and services it requires and it will have powers to appoint staff, to hold and acquire property on behalf of the Parliament and to enter into contracts, as well as representing it in legal matters. However, the Bill leaves scope for further statutory functions to be conferred on the body in the future both by the Scottish Parliament and by Westminster.
      Government amendment No. 39 is of a technical nature which makes it clear that further functions may be conferred on the SPCB only by virtue of an enactment, including Acts of the Scottish Parliament and instruments made under such Acts. This is in keeping with its position as a statutory body. It also leaves it to the Parliament to decide whether it should be possible to confer functions on the body by means of a resolution to make provision in an Act to that effect. This will not, however, affect the statutory functions to be carried out by the SPCB under clause 20(3).
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      Government amendment No. 49 is again a technical amendment which is intended to ensure that, in respect of salaries and pensions of Members of the Scottish Parliament and Executive, the Parliament still has the flexibility to make provision simply by conferring appropriate functions on the SPCB by resolution without having to pass an Act of the Scottish Parliament first.
      Mr. Dalyell: I am rather curious about this matter. I think I am right in saying that the present Clerk of the House of Commons and the Clerk Assistant were earmarked to go to Edinburgh last time around to form part of the core and basis of those who would work in the Scottish Parliament. If we are to have a Parliament, we will need a lot of people who are extremely skilled in the disciplines of clerkship. These people do not come out of thin air. What is the Government's thinking on the number of Clerks and others with expertise of this House who will have to go to Edinburgh? Last time around, it was the present Clerk and the Clerk Assistant, and doubtless others. These are people of the highest calibre in their professional field. We ought to know the Government's thinking.
      Mr. McLeish: My hon. Friend raises important points of detail regarding the staffing of the Parliament. Suffice it to say that, at this stage, the matters are in hand. The discussions will ensure that we have the highest quality of staff, and will not lead to a two-tier situation in terms of standards. The clerking of the Parliament is vital. I would be happy to write to my hon. Friend to give the details of where we are in terms of his question.
      Amendment agreed to.

    Clause 21

      STANDING ORDERS
      Mr. Canavan: I beg to move amendment No. 106, in page 10, line 5, at end insert—
      '(3) The standing orders shall include a requirement for every member elected to the Scottish Parliament to be requested to make the following affirmation:
      "I do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and do hereby declare and pledge that in all our actions and deliberations their interests shall be paramount".
      and no other affirmation or oath shall be required of members of the Scottish Parliament.'.
      Mr. Deputy Speaker: With this, it will be convenient to discuss amendment No. 125, in clause 79, page 36, line 34, leave out from beginning to end of line 11 on page 37.
      Mr. Canavan: Clause 79 places a statutory obligation on all persons returned as Members of the Scottish Parliament to take the oath of allegiance, and forbids Members from taking part in any of the proceedings of the Scottish Parliament until such time as the Member takes that oath of allegiance. I assume that the oath of allegiance which is referred to in the Bill is the same as the one taken by Members of this House, who swear to be faithful and to bear true allegiance to the monarch, her heirs and successors.
      Standing Order No. 5 of this House states:

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      "Every person returned as a Member of this House may make and subscribe a solemn affirmation in the form prescribed by statute instead of taking an oath."
      In other words, if people have religious or other convictions whereby they feel that they cannot take the oath of allegiance, it is open to them to make an affirmation rather than to take that oath—although, of course, to make that affirmation is also solemnly to declare to be faithful and to bear true allegiance to the monarch, her heirs and successors.
      The amendment would ensure that there was no statutory requirement on any elected Member of the Scottish Parliament to take any oath or, indeed, to make any affirmation. It would include in the Standing Orders of the Scottish Parliament a request—I emphasise that—that all Members make an affirmation. The wording of that affirmation would be the same as that of the Claim of Right, acknowledging the sovereignty of the people of Scotland. That Claim of Right was signed by members of the Scottish Constitutional Convention, including those Labour and Liberal Democrat Members of the House of Commons representing Scottish constituencies who took part in the convention's inaugural meeting in 1989. The sovereignty of the people is surely the basis of any genuine democracy.
      Mr. Jenkin: Hear, hear.
      Mr. Canavan: I am pleased to hear the shadow Minister saying, "Hear, hear." We are Members of the House because we were elected by the people. Therefore, our allegiance should be to the people rather than to any king or queen.
      Mr. Jenkin: When the President of the United States takes office, he swears an oath of allegiance not to the people, but to the constitution of the United States. Is the hon. Gentleman saying that the United States is not a democracy because of that?
      Mr. Canavan: Unlike the United States, this country does not have a written constitution. In any case, the United States constitution acknowledges the sovereignty of the people.
      The Scottish Parliament will, I hope, be representative of the people of Scotland as a whole; it will represent the pluralist nature of Scottish society. It may include Members who are royalist and those who are republican; it may include Members who are atheist or agnostic and those who believe in God—in that category, there may be people of different beliefs. They will have in common the fact that they were elected by the people—therefore, they should have allegiance to the people. The amendment would not place a strict obligation on Members to subscribe to the Claim of Right. If, because of royalist or Unionist convictions, Members refused to affirm the Claim of Right, they would not be prevented from taking their seats—the amendment represents a request rather than an obligation.
      Nevertheless, I hope that all Members of the Scottish Parliament—and, indeed, all Members of the House of Commons—will acknowledge the sovereign right of the Scottish people to determine the form of government best
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      suited to their needs. That was the basic democratic principle agreed by the Scottish Constitutional Convention, which did much of the preparatory work to the Bill and to the establishment of the Scottish Parliament. It is, therefore, appropriate that all Members of the Scottish Parliament be requested to acknowledge that principle.
      Mr. Jenkin: The amendments go to the heart of the likely consequences of the Bill.
      The Secretary of State for Scotland (Mr. Donald Dewar): Ah!
      Mr. Jenkin: I hear the Secretary of State saying, "Ah!" in a knowing way, perhaps because I am giving him satisfaction by behaving—as he would think—predictably.
      Mr. Dewar indicated assent.
      Mr. Jenkin: The right hon. Gentleman seems to agree. The constitutional effects of the Bill cannot be legislated for. However much we should like to think that the legal technicalities will determine the future politics of Scotland, that will not be the case—as is nowhere better illustrated than by the amendment, which refers to the Claim of Right.
      8.15 pm
      The Claim of Right—unsurprisingly, given its antecedents—reflects a mediaeval view of sovereignty. Sovereignty is not a question of deciding whether the rulers or the ruled are sovereign. The sovereignty of Parliament does not negate the sovereignty of the people; it reflects an agreement between people, collectively and individually, that their sovereignty is vested in our constitution, so that laws can be made and agreed to with the authority and consent of the people.
      Mr. Salmond: If that is the case, why are United Kingdom referendums consultative rather than binding?
      Mr. Jenkin: That is a matter for Parliament; Parliament could make a referendum result binding rather than consultative. In any sovereign state—whether a republic or a constitutional monarchy—the authority of the people is vested in the constitution, and the rules of that constitution are the supreme law of that state. People need rules to live together in harmony, and a set of rules is needed on how to make and interpret those rules. Whether a constitution is written or unwritten, the rules of the constitution are the supreme law of the state.
      Mr. Salmond: Would not it assist people if the rules in a constitution were written rather than—as in the United Kingdom—unwritten?
      Mr. Deputy Speaker: Order. We are drifting away from the amendment.
      Mr. Jenkin: I totally agree with your interpretation, Mr. Deputy Speaker. It is irrelevant whether a constitution is written or unwritten—a constitution is the supreme

      235
      authority of the land until it is overthrown by the people, in a revolution or through some other extra-constitutional event.
      In that respect, all constitutions are sovereign. We swear allegiance to the Queen in the same way as the President of the United States swears his oath of office to the constitution. The hon. Member for Falkirk, West (Mr. Canavan) is right to say that the constitution of the United States explicitly acknowledges the sovereignty of the people, but the British constitution operates in such a way as implicity to acknowledge the sovereignty of the people, as the laws of this country are made in Parliament—they cannot be made without at least the indirect consent of the people.
      The Queen is at the heart of our constitution. Indeed, the question at the heart of the Bill is, "Who are the people?" The Claim of Right is inherently nationalist, not because it sets the people against the Westminster Parliament—that dualism does not exist—but because it sets the Scottish people against the peoples of the rest of the United Kingdom.
      It is interesting to note that the only individuals elected to this Parliament who refuse to swear an oath acknowledging the sovereignty of Her Majesty are Sinn Fein Members, who cannot take their seats. That exposes their real intention: up to now, they have wanted to overthrow the constitutional order in which they refuse to participate.
      The Bill assumes that the seats of those who refuse to take the oath of allegiance will fall vacant. That allows the dangerous possibility that those who refuse to swear allegiance to the democratic constitution of this Union, by swearing allegiance to the Queen, may be repeatedly unseated and re-elected. That is a flaw in the Bill. We should have a system whereby people who refuse to swear allegiance to Her Majesty are prevented from taking their seats, but those seats are not available to be contested unless they resign.
      The Secretary of State and his colleagues will tell us that the Claim of Right need not be a nationalistic claim, and that that is demonstrated by the fact that the Scottish people voted for a Scottish Parliament in a Unionist settlement. That is the premise on which all Unionists will seek to build in the future but, as the amendments demonstrate, that view is not universally held by those who are likely to take part in the Scottish Parliament.
      In the final analysis, although sovereignty can technically be legislated for, power flows where it will, and in a constitution in which sovereignty derives from the people, the process and flux of politics will determine whether the Scottish people will regard the continuing sovereignty of this Parliament as legitimate or whether the new legal supremacy of Parliament will become an empty shell. The amendments could make Parliament's sovereignty a supremacy that it dare not exercise in defiance of the Scottish Parliament.
      For the Union to continue to work—for Holyrood and Westminster to operate effectively together—the Scottish Parliament will need to acknowledge the sovereignty of this Parliament, which is reaffirmed by clause 27(7), but by signing the Claim of Right Ministers have created an expectation of something different. The logic of clause 27(7) is allegiance to the Crown but, by supping with nationalism and aiding and abetting its resentments, Ministers have given credibility to the suggestion that sovereignty permanently lies elsewhere.
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      If the Claim of Right was right for the Scottish Constitutional Convention when the Secretary of State signed it, why is it not right for the oath of allegiance in the Bill? The answer is that the Claim of Right is not compatible with this Parliament's sovereignty or with the Unionism that Ministers claim to espouse.
      Mr. Dalyell: I have the feeling that Ministers are not exuding gratitude to my hon. Friend the Member for Falkirk, West (Mr. Canavan) for having tabled the amendment, because it means that they have to answer the question whether they believe in the Claim of Right, and that is a very direct question. As one who failed to sign the Claim of Right, I am entitled to ask that important question. I notice that the co-signatory to the amendment is the hon. Member for Banff and Buchan (Mr. Salmond), the black bitch himself, who called me a scarecrow and, what is worse, an old scarecrow. This old scarecrow is entitled to ask precisely what is Her Majesty's Ministers' updated position on the Claim of Right.
      Mr. Salmond: I am sure that I called the hon. Gentleman a scaremonger, not a scarecrow, but I know that he never says anything that he does not believe to be true. Yesterday, I was called on by the Edinburgh Evening News to respond to his suggestion that there should be another referendum in Scotland and that the question should be: "Are you sure that you want to vote for a Scottish Parliament?" For the first time in my political career, I was speechless; but he knows that I respect his integrity. He was indeed the only Labour Member not to sign the Claim of Right, which is encapsulated in the splendid amendment.
      I am somewhat bemused by the line taken by the official Opposition. All my political life I have been taught and have believed that there is a tension between the concept of popular sovereignty—sovereignty of the people—and the uniquely British concept of the sovereignty of the Queen in Parliament. The hon. Member for North Essex (Mr. Jenkin) started his speech by saying that there was no such tension, and finished it by saying that there was a tension between the Claim of Right asserting popular sovereignty in Scotland and the concept of the sovereignty of the Queen in Parliament.
      There has been a continuing thread through Scottish political thought that emphasises the sovereignty of the people, which is not necessarily in conflict with the monarchy. Many would argue that the declaration of Arbroath promulgated the concept of an elective monarchy. It said, and I paraphrase because I do not have it off by heart, that if good King Robert did not defend the rights and responsibilities of the community of the realm, we could get rid of him and have someone else as the monarch. Monarchy and popular sovereignty are not necessarily in conflict. The question is which has primacy.
      The hon. Member for Falkirk, West (Mr. Canavan) and I believe that the sovereignty of the people should have primacy, so the oath of affirmation and the fundamental loyalty of the Members of the Scottish Parliament should be to the well-being of the Scottish people, from whom they derive whatever authority and responsibility they have.
      I hope that the Government will accept the amendment. I am led to believe that they may do so by the answer that the Secretary of State gave me almost a year ago. He said:

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      "Even though the hon. Gentleman"—
      he was talking about me—
      "and I may have differences of interpretation, I hope that he will accept that I should be the last to challenge the sovereignty of the people or deny them the right to opt for any solution to the constitutional question that they wish."—[Official Report, 21 May 1997; Vol. 294, c. 725.]
      That is a solid affirmation in support of the affirmation called for in the amendment.
      The hon. Member for Falkirk, West is splendidly consistent and has argued robustly for many years for a particular position on the constitutional question. There are those in his party who tell me that the nearest that he will get to being a Member of the Scottish Parliament is the visitors' gallery. That would be a great pity for that Parliament. I hope that whoever determines such matters in his party will find the wisdom to allow him to stand. Having argued the cause for many years, he has the right to be there. Whatever happens to this splendid, small but critical amendment, we can be certain that he will affirm the values for which he has stood consistently in Scottish politics for many years. Would that others had his consistency of position on the sovereignty of the people of Scotland.
      Mr. Swayne: I have great difficulty even with the language of the amendment. The hon. Member for Falkirk, West (Mr. Canavan) said that the oath was to be voluntary. The amendment says:
      "every member elected to the Scottish Parliament to be requested to make the following affirmation",
      but that is preceded by the phrase,
      "The standing orders shall include a requirement for".
      There is merely a requirement that everyone should be asked to take the oath. However, the phrase that follows the oath reads:
      "and no other affirmation or oath shall be required of members of the Scottish Parliament."
      In other words, that oath is "required". There seems to be a contradiction between the two halves of the amendment.
      It strikes me as extraordinary that an oath should be required to be put to Members of the Scottish Parliament, but that they should not be required to take it. What is the purpose of an oath? It is similar to the purpose of a creed. If one goes to church and says the creed, one expresses one's identity and membership of that institution. If one cannot say the creed, one by definition excludes oneself from the Church.
      8.30 pm
      By specifying an oath for Members of the Scottish Parliament, we are asking them to subscribe to fundamental propositions inherent in the nature of that Parliament. If they cannot do that, they will disqualify themselves, just as hon. Members who refuse to take the oath in the House disqualify themselves from sitting here. They are unable to subscribe to the fundamental consensus that underpins this institution. I fail to see why that should be different in Scotland.
      I will go further. To put a proposition to Members of the Scottish Parliament that is fundamentally different from the one put to hon. Members here would be most
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      unsatisfactory. The Bill was put to us on the basis that we would remain a united kingdom. The Bill was supposed to protect the Union. As far as I am concerned, nothing could be more symbolic of the Union than the fact that the two Parliaments would remain united under the Crown, which would be symbolised by having Members of both Parliaments take the same oath.
      Giving Members of the Scottish Parliament a very different oath—whether or not it is voluntary—would be most regrettable, although I fear that it may merely be a recognition of the true state of affairs.
      Mr. Gorrie: The amendment raises two points. One is an issue that affects the House. Perfectly worthy citizens who hold republican views must, in effect, perjure themselves by swearing an oath of allegiance to Her Majesty. That strikes me as extraordinarily demeaning, and we should address it.
      Mr. Jenkin: The hon. Gentleman should not regard it as demeaning. It is not a religion to swear allegiance to Her Majesty the Queen; it is simply a recognition that that state of affairs has the broad consent of the population. The hon. Gentleman may wish to change that, but it is the framework within which to seek to pursue change. To swear allegiance to Her Majesty the Queen is not to declare that one is a royalist.
      Mr. Gorrie: With respect, I think that it is. Compelling people to swear things that they do not believe is not the sort of thing that we should do. It does not affect me, but I feel for those for whom it matters.
      Mr. Alasdair Morgan: Has the hon. Gentleman reflected on why an oath is necessary at all? No elected councillor or Member of the European Parliament swears an oath, yet they seem perfectly capable of carrying out their functions. What difference does it make?
      Mr. Gorrie: I agree. I do not think that an oath is necessary. Either one behaves well, or one does not; no oath will make any difference.
      Some Conservative Members seem to feel that the amendment is an independence amendment. They feel that one can sign the Claim of Right only if one favours independence, but that is not true. The people have sovereign power; even the Conservative party accepts that, and numerous Conservatives have said over the years that if the Scottish people vote for independence, they will have independence. The concept of the sovereignty of the people is accepted, but the Conservatives seem to have extraordinary difficulty with devolution, which seems to be a sort of gastric block somewhere in their tubes. That is their problem, and they must deal with it.
      The Conservatives accept the sovereignty of the people. Those who signed the Claim of Right, and believe in it, feel that the Scottish people have clearly said that they want a Parliament of their own, but in the United Kingdom. If at some future date a majority say that they want an independent Parliament, that will doubtless happen, but for now the Claim of Right seems reasonable.
      Whether the best way in which to proceed is to have a requested oath, I do not know, but the motives behind it are admirable. I do not see why people should have to swear oaths, but if they do, an acknowledgement of the sovereign rights of the Scottish people is a good thing.
      Mrs. Eleanor Laing: Some hon. Members have suggested that the Government might

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      consider accepting the amendment. I sincerely hope that they do not, for three good reasons. First, the Government cannot accept, or even consider accepting, the amendment if they insist that their plans for devolution are designed to strengthen, not weaken, the Union.
      Mr. Salmond: Will the hon. Lady give way?
      Mrs. Laing: I have hardly started, but I will stop and start again.
      Mr. Salmond: The hon. Lady may hardly have started, but she has made an important point. Is she aware that Ministers, including the Secretary of State and the Minister of State, have already signed such a declaration, in the Claim of Right? Why on earth should they refuse to accept it in the Bill?
      Mr. Collins: That is their problem.
      Mrs. Laing: That is indeed their problem, but I take the point made by the hon. Member for Banff and Buchan (Mr. Salmond). I believe that it was irresponsible and short-sighted for any hon. Member to sign the so-called Claim of Right—except for members of his party, who really believe in republicanism and a separate Scotland. If, however, the Government insist, as they do, that their plans for devolution are intended to strengthen the Union, they cannot—no matter what they have signed, under whatever misapprehension—accept the amendment.
      Mr. Salmond: Perhaps I can tell the hon. Lady a little bit of history. The Scottish National party did not, in fact, sign the Claim of Right, although we believed in it; the question is whether those who did sign it believed in it.
      Mrs. Laing: I thank the hon. Gentleman for enlightening us with that little bit of history, as he called it, but we are discussing the serious matter of what will actually be in the Bill. What may or may not have been signed in the past—and I know that we can go all the way back to the declaration of Arbroath and so on and so forth—is very interesting in its historical context, but it is not relevant to the future of Scotland. We are discussing that future, and what will actually be in the Bill.
      The amendment is ludicrous for three reasons. First, it would be a complete negation of the United Kingdom. I know that the hon. Member for Banff and Buchan would like that to happen, but I did not know that the hon. Member for Falkirk, West (Mr. Canavan) had aligned himself to such an extent with the Scottish National party. That is entirely up to him, of course, and I accept that he believes in his arguments. However, the rest of his party cannot possibly believe in them. Not only is the amendment a negation of the Union; it negates the position of Her Majesty the Queen as the sovereign in whom we, as an elected Parliament, vest our democratic and constitutional rights.
      Mr. Salmond: One last intervention. In her memoirs, "The Downing Street Years", Lady Thatcher said that if the Scottish people were to determine on independence, no English politician, certainly not herself, would gainsay
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      that decision. I paraphrase, but is that not an affirmation from the great Lady Thatcher of the right of sovereignty of the Scottish people?
      Mrs. Laing: I appreciate that that is a paraphrase and not exactly what she said, but it is close. I accept that, and, of course, I entirely agree with it. There is nothing wrong with that, but that is not what we are discussing. The hon. Gentleman strays from the point, and I am being too generous in accepting his interventions. Naturally, Lady Thatcher was right. I choose my words carefully. That is why I agree with her and that is why we are not in principle against devolution because it is the will of the Scottish people.
      The first reason why the amendment cannot be accepted is that it negates the sovereignty of Her Majesty the Queen, which we vest in her as an elected parliamentary body.
      Mr. Collins: My hon. Friend is making a wonderful speech and demonstrating that there is another Conservative woman who is naturally always right. Will she focus on why it is beneficial to those who believe in democracy to vest sovereignty in the monarch? Dictators across the years, from Hitler to Stalin to Saddam Hussein, have all paid lip service to popular sovereignty. Only by having a sovereign above and outside politics can we ensure that we have smooth-running, democratic politics and no risk of dictatorship.
      Mrs. Laing: My hon. Friend is right. It is because of the risk of dictatorship and other forms of republicanism that we are proud of our heritage and our constitution, which has at its head Her Majesty the Queen as the sovereign in Parliament. She is not the sovereign alone, but the sovereign in Parliament in making the laws of our country. My hon. Friend's other remarks are probably the nicest thing that anyone has ever said to me.
      Mr. Salmond: That will not get you anywhere these days.
      Mrs. Laing: That is all I am admitting to anyway.
      Secondly, the amendment is an atheist's charter. I respect the rights of anyone who wishes to be an atheist. It is up to each of us personally whether and how we believe in God, or which god we believe in. However, if the amendment were accepted, Members of the Scottish Parliament would have no choice but to make the affirmation. That is out of character with our democratic system. When Members come to this House, they are given the choice of swearing the oath of allegiance by almighty God or affirming. The amendment would mean that MSPs had no choice.
      When I took the oath of allegiance a year ago, I heard two new lady Members of the Labour party discussing whether to swear or affirm. One said that she would not swear because she did not believe in God, but the other said that she was not sure whether she would affirm or swear. It amazed me that someone could go so far in life as to become an elected Labour Member without knowing whether she believed in God. Presumably, she was waiting for her bleeper to tell her whether she was supposed to swear or affirm. She had been here for three days, but she had to wait for the "voice of Mr. Mandelson".

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      Thirdly, some MSPs would not be able to say the words in the amendment. I could not if I became an MSP, not that that is possible because I will not stand. The oath of allegiance to Her Majesty the Queen is what binds the United Kingdom together. Members who support this amendment are merely showing, once and for all, that they are bent on the destruction of the United Kingdom.
      8.45 pm
      Mr. McLeish: I am grateful for the fact that the hon. Member for Epping Forest (Mrs. Laing) has finished, because, the more I listened to her, the more I might have been tempted to go astray on the amendment. I will resist that temptation.
      We have to return to the pragmatic decision before us on the two amendments tabled by my hon. Friend the Member for Falkirk, West (Mr. Canavan), whose sincerity is never in doubt. I acknowledge the consistency with which he tabled certain amendments. The Government ask the House to resist amendments Nos. 106 and 125.
      Provision has already been made in the Bill for all Members of the Scottish Parliament to take the oath of allegiance provided for by the Promissory Oaths Act 1868 or to make the corresponding affirmation. Members of the Executive will also be required to take the official oath under the 1868 Act and the oath of allegiance, where they have not already taken it as MSPs. That is in line with current practice at Westminster and recognises the relationship between the Parliament and Her Majesty, as has been noted in the debate.
      Hon. Members will agree that clause 79 does nothing contentious. It simply makes a similar provision for the taking of the oath for Members of the Scottish Parliament and the Scottish Executive as is required of Members of this House and Ministers, which is entirely appropriate.
      Mrs. Ray Michie: The Minister talks about what happens when new Members are elected to the House of Commons. Will he confirm that the practice here whereby the oath can be taken in English, Gaelic or Welsh will be extended to allow the oath to be taken in English or Gaelic in the Scottish Parliament? I was the only Member who took it in Gaelic after the last general election. I hope that the practice will apply to the Scottish Parliament.
      Mr. McLeish: That is interesting. We have established a constitutional consultative steering group and done considerable work on identifying virtually every issue that we need to discuss, but I am not sure that that is on the agenda. I assure the hon. Lady that that will happen. We need that consistency. It is a valid point. I will find out whether the point is covered in the deliberations; if it is not, it will be.
      Mr. Dalyell: I listened carefully to my hon. Friend. For clarity's sake, does this not mean, to use his word "simply", that the Government, rightly or wrongly, have recanted on the Claim of Right?
      Mr. McLeish: Not at all. We have had a rich and heady mix of constitutional, governmental and parliamentary theory, but there is no inconsistency about the comments
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      of my right hon. Friend the Secretary of State for Scotland on the sovereignty of the people, to which the hon. Member for Banff and Buchan (Mr. Salmond) alluded. Nor is the signature of the Claim of Right inconsistent with the points that we are making this evening, in the context of Parliament and of taking the oath.
      Hon. Members would no doubt also agree that it is proper that MSPs and members of the Executive take an oath that is symbolic of the relationship between the Parliament, the Executive and Her Majesty.
      Mr. Jenkin: I asked the Minister two specific questions, neither of which he has troubled to answer. First, if it was right to sign the Claim of Right as a member of the Scottish Constitutional Convention, why is not the Claim of Right the right oath for a Member of the Scottish Parliament? The Minister has not squared that circle. Does he want to deal with that first before I come back on my second point?
      Mr. McLeish indicated dissent.
      Mr. Jenkin: I generally dislike long interventions, Mr. Deputy Speaker.
      My second question refers to clause 79(3), which amendment No. 125 would delete and which states that, if an MSP has not taken the oath
      "within the period of two months beginning with the day on which he was returned, or such longer period … he shall cease to be a member of the Parliament (so that his seat is vacant)."
      Does the Minister understand what a crisis that provision would cause if it applied to this Parliament, with Sinn Fein Members refusing to take the oath and being re-elected again and again on a platform that was designed to undermine the constitution?
      Mr. McLeish: On the second point, we have no difficulties with that whatsoever. That is a pragmatic response to a question that, in our judgment, is not relevant.
      On the question of the Claim of Right, I alluded to that in my response to my hon. Friend the Member for Linlithgow (Mr. Dalyell). We do not want to indulge in further political and constitutional theory, but I see no inconsistency between the statements made by my right hon. Friend the Secretary of State in response to comments often made by the hon. Member for Banff and Buchan, nor do I see any inconsistency in relation to the constitutional convention. However, we are now dealing with the simple, consistent matter of taking an oath in the new Parliament, and I urge the House to reject the two amendments tabled by my hon. Friend the Member for Falkirk, West.
      Mr. Canavan: I am disappointed that my hon. Friend the Minister is recommending rejection of my amendments, because he and I were original signatories of the Claim of Right back in 1989, at the inaugural meeting of the Scottish Constitutional Convention in the assembly hall of the Church of Scotland in The Mound in Edinburgh. I should have thought that, for reasons of consistency if nothing else, he would support my amendment No. 106. Indeed, the Secretary of State and all the Scottish Office Ministers were co-signatories of the

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      Claim of Right and I deliberately worded my amendment so that its wording was exactly the same as that of the declaration that we all signed nine years ago.
      Mr. Jenkin: Perhaps to be consistent with Government policy, MSPs should take both oaths of allegiance—to the Queen and to the Scottish people. I do not suggest that that is Opposition policy, but it might have tempted the Minister, as that appears to be his position.
      Mr. Canavan: Under the terms of my amendment, there would be a choice. I would not exclude people who, because of royalist or Unionist convictions, felt that the Claim of Right stuck in their craw. I cannot understand why it should stick in their craw if they are democrats, but, if it did and they refused to take the oath, I would not be in favour of excluding them. Conservative Members appeared to suggest that the practice in the House somehow gives Members of Parliament a choice, but the only choice is to come up after being elected and either take the oath or take the affirmation. If a Member of Parliament refuses both, he or she is not allowed to take part in the proceedings of the House and I should not like to see that replicated in the Scottish Parliament.
      The hon. Member for North Essex (Mr. Jenkin) rightly referred to the possibility of a crisis—not a huge constitutional crisis, but a mini-crisis—if a Member or group of Members duly elected by their constituencies refused to take the oath. Clause 79(3) states that, if an MSP has not taken the oath
      "within the period of two months beginning with the day on which he was returned, or such longer period as the Parliament may have allowed before the end of that period, he shall cease to be a member of the Parliament (so that his seat is vacant)."
      In other words, he or she can then go back to the constituency that elected him or her and seek re-election through a by-election. There could be a whole group of people coming in and out of the Parliament whom the Parliament refused to allow to take their seats because they had not taken the oath. If my amendments were accepted, that would help to avoid such a crisis, so I hope that the hon. Member for North Essex and the rest of the Opposition Front-Bench team will support me.
      Mr. Salmond: The hon. Gentleman is coming to the point that crystallises the wisdom of his amendment. Current procedures of the House have led to the state of affairs in which Ministers of the Crown cross their fingers when taking the oath. Under the arrangements in his amendments, it would be left to the Scottish people to decide the fate of anyone who refused to swear allegiance to, or to affirm, the sovereignty of the Scottish people. The hon. Gentleman's solution is a far more democratic solution and is greatly superior to the procedures of the House.
      Mr. Canavan: I agree. The democratic principles enshrined in the Claim of Right would have more universal appeal than the principles, if they can be called principles, in the proposed oath—assuming that the proposed oath is the same as the one that we are required to take when taking our seats in the House. I know some people of a republican persuasion who, when taking the oath or affirming, simply acknowledge that the Queen is the de facto Head of State, but who would like this
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      country to have a democratically elected Head of State, rather than a Head of State who has simply inherited that position from her parent.
      Some Members, especially new Members, who do not particularly believe in the monarchy might have some crisis of conscience over taking the oath or affirming. That would be avoided by doing away with the requirement completely. I realise that we are talking not about this place—although I would welcome such a development here as well—but about the Scottish Parliament and people taking their seats there.
      The criticism of my amendment included the point that it posed a threat to the integrity of the United Kingdom—I believe that the hon. Member for Epping Forest (Mrs. Laing) said that. What is the United Kingdom? Is it, as its name suggests, simply the domain of a monarch? If so, is that really what people are defending when they defend the integrity of the United Kingdom? I should have thought that, if there is an argument for the defence of the United Kingdom, it would be in terms of the bonds of friendship and culture and the social and economic links between the different parts of the United Kingdom. I should not have thought that it was simply a matter of allegiance to the Head of State.
      Mrs. Laing: Is not the sovereign the symbolic point of focus for those ties and friendship? It is a united kingdom, with a sovereign at the top. That is why the oath of allegiance is the one oath that binds every person in the United Kingdom, symbolically, to the sovereign.
      Mr. Canavan: If the hon. Lady is saying that, if what is now called the United Kingdom developed into a republic, its integrity would somehow be demolished, that is rather a weak argument for the integrity of the United Kingdom. The Queen is also head of the Commonwealth, but it contains many countries that are republics and do not have the Queen as their Head of State.
      The hon. Member for North Essex said that the Claim of Right was inherently nationalist. It is not nationalist in a narrow-minded sense. I am sure that most, if not all, of those who subscribe to the Claim of Right for Scotland would also recognise the claim of right of other nations, including those that make up the United Kingdom, particularly Wales and England. There ought to be recognition of other nations' claims of right, as well as of that of the people of Scotland.
      I was disappointed to hear the shadow Minister saying that the Claim of Right is somehow mediaeval. I would say that the sovereignty of monarchs, rather than of the people, is a mediaeval concept. The sovereignty of the people is much more relevant to a modern, egalitarian democracy.
      Amendment negatived.

    Schedule 3

      STANDING ORDERS—FURTHER PROVISION
      9 pm
      Mr. Gorrie: I beg to move amendment No. 111, in page 57, line 39, after 'sub-committees', insert
      'other than regional committees and regional sub-committees.'.
      Mr. Deputy Speaker (Sir Alan Haselhurst): With this, it will be convenient to discuss amendment No. 112, in page 57, line 40, at end insert—

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      '(2A) The standing orders shall include provision for ensuring that, in appointing members to regional committees and regional sub-committees, regard is to be had to the balance of parties in the Parliament representing that region.'.
      Mr. Gorrie: Will the Minister give an assurance that the Bill would not be misused to prevent the setting up of regional committees that did not fully represent the composition of the Parliament?
      It being four and a half hours after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to the Order [13 January] and the Resolution [this day], put forthwith the Question already proposed from the Chair.
      Amendment negatived.

    Clause 23

      POWER TO CALL FOR WITNESSES AND DOCUMENTS
      Mr. McLeish: I beg to move amendment No. 129, in page 11, line 7, leave out 'statutory'.
      Mr. Deputy Speaker: With this, it will be convenient to discuss the following amendments: Government amendments Nos. 137 to 145, 159, 183 to 186, 259, 262, 263 and 198 to 201.
      Government new clause 19—Agreed re-distribution of transferred functions.
      Government amendments Nos. 204, 205, 207, 215, 218 and 221.
      Mr. McLeish: With the tolerance and forbearance of the House, we shall proceed.
      This is a group of technical amendments to the clauses that are concerned with the transfer of ministerial functions to the Scottish Ministers. It will clarify which functions will transfer down under clause 49. It will clarify the functions that will transfer, including those conferred by prerogative instruments such as royal charters. It will also clarify how the functions of United Kingdom Ministers can be split so as to enable the split functions to transfer under clause 49, and will insert a new clause permitting functions to be transferred from Scottish to United Kingdom Ministers by agreement—for example, in relation to schedule 5—if there is any modification required following discussions. That, in essence, is what new clause 19 seeks to do.
      The intent of the amendments is fairly straightforward, and, with the agreement of the House, I shall go through the details as quickly as I can. I refer first to Government amendments Nos. 139, 159, 183, 198, 259, 204, 205 and 218.
      Government amendment No. 139 modifies clause 49—which is intended to transfer to the Scottish Ministers those ministerial functions that relate to devolved matters—so that it is clear that it transfers functions that are conferred by prerogative instruments, such as royal charters. Government amendments Nos. 159, 183 and 259 make related amendments to clauses 83, 96 and 100. Government amendment No. 198 amends clause 104 so that the appropriate references to the Ministers of the Crown in prerogative instruments shall be read as
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      references to the Scottish Ministers. In a sense, it is a tidying-up amendment. Government amendments Nos. 204, 205 and 218 provide a definition of prerogative instrument.
      Government amendments Nos. 138, 140 to 142, 144, 199 to 201 and 215 are centred around Government amendments Nos. 138 and 140 to 142 to clauses 49 and 50. Their essential purpose is to make it clear that executive functions will transfer if it would be within the Parliament's competence to pass laws enabling a Scottish Minister to exercise the relevant function. Government amendments Nos. 144, 199 to 201 and 215 make consequential technical amendments.
      Government amendment No. 143 amends clause 52, which sets out those powers in relation to devolved matters that, despite devolution, are to be exercisable by Ministers of the Crown as well as by the Scottish Ministers. The amendment adds a reference to ministerial powers conferred by Orders in Council implementing United Nations sanctions. That will enable appropriate arrangements to be made for the continuation of licensing of trade in goods and services under such orders.
      In most cases, it would make sense for the United Kingdom Government to continue to administer a unified regime of licensing covering both reserved and devolved matters. This amendment will enable that to happen by agreement. Future sanctions orders are not covered: they can make their own provision as to who exercises any licensing functions. I trust that the House will agree that this amendment is necessary as a practical solution to the continued administration of UN sanctions as part of our international obligations.
      Government amendment No. 137 inserts a definition of "statutory function" into clause 48. Government amendments Nos. 207 and 221 make consequential changes to clauses 111 and 112. Government amendment No. 145 alters clause 59 so that all forms of ministerial function, not just those conferred by statute, can be executively devolved or modified by Orders in Council under that clause.
      That will bring what is possible by executive devolution into line with the intended effect of clause 49 in transferring ministerial functions that relate to devolved matters to the Scottish Ministers. Government amendment No. 129 makes a consequential amendment to clause 23, so that Parliament's power of summons applies in relation to matters that are the subject of non-statutory executively devolved functions as well as statutory ones.
      Government amendments Nos. 184, 185 and 186 are technical amendments to the order-making powers in clause 97. Government amendments Nos. 184 and 185 make it clear that such subordinate legislation under that clause can split ministerial functions so that they are exercisable separately within devolved competence for the purpose of facilitating their transfer to the Scottish Ministers. At present, the clause merely mentions the splitting of functions so that they are separately exercisable in, or as regards, Scotland. Government amendment No. 186 deletes clause 97(3), which would be redundant as a result of the proposed amendments to clause 84.
      New clause 19, together with Government amendments Nos. 262 and 263, enables Her Majesty by Order in Council-subject to affirmative procedure in both Parliaments-to provide for functions exercisable by the

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      Scottish Ministers to be exercisable instead by a Minister of the Crown or concurrently with a Minister of the Crown, or by a Minister of the Crown only following consultation or agreement with the Scottish Ministers. The power would ensure that appropriate arrangements could be made for the transfer of functions to the UK Government in consequence of an extension of the list of reserved matters by an Order in Council under clause 29, or of an agreement to vary the functions that were exercisable by the Scottish Ministers under executive devolution.
      Mr. Douglas Hogg: With regard to the Order in Council referred to in new clause 19, can the Minister tell the House whether it is to be made by the affirmative or the negative procedure?
      Mr. McLeish: I am sorry that the right hon. and learned Gentleman missed my point; perhaps it was not distinct. The Order in Council will be subject to affirmative procedure in both Parliaments.
      Mr. Hogg: In both Parliaments?
      Mr. McLeish: In both Parliaments. We are seeking to improve the Bill by adding these technical amendments, which make the splitting of responsibilities clear. We must do that by agreement. If the power is required, it will be subject to affirmative procedure in both Houses, which is appropriate in the circumstances that I have outlined. It could also be used to enable UK Ministers to exercise certain functions on a UK-wide basis—for example, in the collection of certain statistics.
      These technical amendments are necessary to make adequate provision for the transfer and exercise of executive functions. The Bill is a major constitutional measure, and the amendments are intended to improve it. As a courtesy to hon. Members, I will be happy to furnish them with further details of each of the amendments, if that is required.
      Mr. Heald: In respect of amendment No. 159, which extends the requirements on cross-border public authorities concerning the laying of reports by including bodies that might be required to lay reports before this place under prerogative instrument, would the BBC, as a body under royal charter, be required to lay a report before the Scottish Parliament?
      Mr. McLeish: That particular amendment and clause would not have that effect, but we have arranged that the report of the BBC nationally will be placed before the Scottish Parliament. That has been done by agreement, in the context of the cross-border debates that we have had. That is a reserved function, which is covered by other parts of the Bill.
      Dr. Fox: During our consideration of the Bill, we have often accused various groups of tabling amendments for various reasons, but clearly the Government did not table this group of amendments to try to steal the headlines from the Foreign Secretary. It is not the most politically contentious group of amendments that we have considered.
      I am grateful to the civil servants who spoke to us in advance about the need to table a large number of amendments, but we must ask why there are so many.
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      I seek clarification from the Minister on one or two points, so that those mere mortals among us who do not have law degrees and those outside who pay attention to such matters can have the answers in plainer English.
      Amendment No. 138 removes the words
      "in or as regards Scotland"
      and replaces them with the words "within devolved competence". Why has that change been made? What is the difference? Is it simply drafting, or is a different meaning brought in by the change?
      With reference to amendment No. 141, what is the difference between clause 50(2) as it exists in the Bill, and subsections (2)(a) and (b) in the amendment? Again, there seems to be a slight difference that may not be accounted for by drafting.
      Can the Minister tell us what amendment No. 142 means in practice? The words
      "or purporting to be made by a member of the Scottish Executive is to be read, so far as possible, so as to be within the powers conferred by virtue of this Act"
      in clause 50 are to be replaced by the words
      "confirmed or approved, or purporting to be made, confirmed or approved".
      It would be helpful to the House to know what that change means. I have read the amendment four or five times, and I am none the wiser, so I shall be pleased if he can help us.
      On amendment No. 143, the Minister spoke of the need for measures to give effect to Security Council decisions, but how does that square with the reservation for foreign policy in schedule 5? If such a foreign policy decision is entirely reserved to the Westminster Parliament, why is the provision needed? If a particular aspect of foreign policy requires the agreement of the Scottish Parliament, what will happen if the Scottish Parliament does not agree? What will happen to Britain's international obligations?
      The Secretary of State told us, I think on Second Reading, that the reason for reserving foreign affairs to Westminster was that we could not afford a split in the responsibility; we could not afford ever to have a situation where the Scottish Parliament did not want to accept international responsibility. What would happen with regard to a Security Council order? If the Scottish Parliament decides that it does not like what the Westminster Government are going along with in terms of sanctions, would not that be a breach of our international obligations, and is that not incompatible with the worst case scenario that the Secretary of State set out at the beginning of the Bill's passage?
      9.15 pm
      Mr. Collins: My hon. Friend is being a little ungenerous. He should know that, in this Government, even the Foreign Office does not follow British foreign policy.
      Dr. Fox: I shall not be drawn into the debate on the Foreign Office. It has had enough damage done to it for one day. A little kindness would be in order at this time of the evening.
      How will new clause 19 work? The Minister has outlined to us tonight three mechanisms by which an Order in Council may be made. It may be made

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      "by a Minister of the Crown instead of by the member of the Scottish Executive … by a Minister of the Crown concurrently with the member of the Scottish Executive, or … by a Minister of the Crown only with the agreement of, or after consultation with, a member of the Scottish Executive."
      Exactly who will be in charge of initiating which process is taken forward? At what level of Government will that decision be made? That seems crucial in maintaining the political balance between Westminster and the Scottish Parliament, and maintaining the authority of Ministers of the Crown in relation to Ministers in the Scottish Executive. If that is not made clear at this point, there is plenty of room for misinterpretation later, for mischief making and for unnecessary tension.
      The Government have tabled new clause 19 as a means of clarifying one or two of the problems which they identified in the drafting of the Bill earlier. But new clause 19, lacking any specific indication of who will initiate the process, who will be responsible for it and who will oversee it, seems to lead toward ever greater confusion.
      The House would be grateful to the Minister if he could give us a far more detailed explanation of exactly how the mechanisms that will bring new clause 19 into play will work in practice. That is not clear from the amendments that have been tabled.
      Mr. Dalyell: At an earlier stage in the Bill, I raised the question of a Scottish Parliament and Lockerbie. The hon. Member for Banff and Buchan (Mr. Salmond) acidly commented that at last I had found a reason for supporting the Scottish Parliament. With that introduction, I come to amendment No. 143 to clause 52, which states:
      "any Order in Council under section 1 of the United Nations Act 1946 (measures to give effect to Security Council decisions)".
      My hon. Friend the Minister may recollect that, the night before he brought in the Bill, there was an Adjournment debate on Lockerbie. I think that he is fully cognisant of the problem, but, in terms of amendment No. 143, would Lockerbie, and all that goes with it, be the responsibility of the United Kingdom Parliament or the Parliament in Edinburgh?
      Mr. Hogg: I want to follow on from the questions put by my hon. Friend the Member for Woodspring (Dr. Fox) on new clause 19. In particular, I am concerned with subsection (1)(a). I should be extremely grateful if the Minister could explain a little more clearly how that will work. It at least raises the possibility of a quite serious democratic deficit.
      As I understand new clause 19(1)(a), an Order in Council may provide for a Minister of the Crown to exercise any devolved functions performed by a member of the Scottish Executive. First, will the Order in Council, under the affirmative procedure, be discussed in the Scottish Parliament and the Westminster Parliament, or in only one Parliament? An Order in Council in respect of a Minister of the Crown should be dealt with only at Westminster, not in the Scottish Parliament. I would welcome clarification of that matter.
      Secondly, and differently, as I understand new clause 19(1)(a), the power under the Order in Council could be general and continuing—not specific to the performance of an individual function, but enabling a Minister of the
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      Crown to perform for an extended period the functions usually performed by a member of the Scottish Executive. I would also welcome clarification of that matter.
      Lastly and most seriously, assuming that an Order in Council is made empowering a Minister of the Crown to perform the functions usually performed by a member of the Scottish Executive, the Minister of the Crown would not be accountable to the Scottish Parliament, and could give no account for his or her doings to it. Indeed, it is bizarre to suppose that a Minister of the Crown could give an account in this place, because we are, by reason of other measures, precluded from examining devolved business.
      If a Minister of the Crown were given powers under new clause 19(1)(a) in respect of business usually transacted by members of the Scottish Executive, to whom would he be accountable? Not to the Scottish Parliament, because he would not be available to it. Would he be accountable to us? We will have no authority over what happens in Scotland, however, so I strongly suspect that new clause 19(1)(a) will create a serious democratic deficit. I very much look forward to hearing what the Minister has to tell us.
      Mr. McLeish: I shall deal with new clause 19 first, and try a further explanation. We are devising a structure that will allow Scottish Executive Ministers and Ministers of the Crown at Westminster to deal with devolved and reserved competencies in an orderly fashion. I make that clear to provide context for last question asked by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg).
      New clause 19 will enable the transfer, with the agreement of both Parliaments, of functions exercisable by Scottish Ministers—
      Mr. Hogg: I referred to new clause 19(1)(a).
      Mr. McLeish: With respect, the right hon. and learned Gentleman asked for answers. I intend to give them.
      Mr. Hogg: The Minister is doing his best.
      Mr. Deputy Speaker: Order. The Minister has not given way.
      Mr. Hogg: I think that the Minister was giving way.
      Mr. Deputy Speaker: The Minister has not so far given way.
      Mr. McLeish: With the greatest respect, and accepting the right hon. and learned Gentleman's experience in the House, allow me to go through the points he made. I am keen to do so, because he asked a specific question about agreement in both Parliaments. We are talking about functions being handed down—[Interruption.] Would the right hon. and learned Gentleman care to listen?
      We are dealing with a simple process concerning reserved and devolved functions and Orders in Council, on which there must be agreement. Schedule 5 deals with reserved competencies. There can be adjustments, but they must be agreed by both Houses.

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      The next issue is where the Order in Council would be dealt with. First, there must be concurrent agreement on an Order in Council straddling reserved and devolved powers. Secondly, some Orders in Council will be dealt with entirely by the Scottish Parliament, because they relate to devolved competencies. Finally, Orders in Council relating to reserved matters are dealt with at Westminster. The position is not as complex as hon. Members are trying to make out. We are trying to give the clauses in the Bill some structure and to refine them so that there is little doubt, confusion and ambiguity about how orders will be dealt with as the process of devolution unfolds.
      Dr. Fox: Subsection (1) of new clause 19 states:
      "Her Majesty may by Order in Council provide for any functions exercisable by a member of the Scottish Executive to be exercisable—
      (a) by a Minister of the Crown instead of by the member of the Scottish Executive".
      Subsection (2) states that, where an order is made under subsection (1)(a), it may be
      "exercisable by the Minister of the Crown free from any such requirement"
      to consult. How is that different from what my right hon. and learned Friend suggested, which was that the new clause creates a democratic deficit as a means of bypassing the mechanism that the Minister has just outlined?
      Mr. McLeish: There is no case for any democratic deficit. The new clause is intended to help and to simplify the procedures involved.
      Dr. Fox indicated dissent.
      Mr. McLeish: The hon. Gentleman shakes his head. I assure him that that is the purpose of the new clause. We have no intention of bypassing any particular process. The Bill is designed so that the Westminster Government and the Scottish Executive will have simple processes that will be tried and understood. That is essential for devolution to work.
      Mr. Hogg: Let us assume that an Order in Council is made that grants the Minister of the Crown some authority under the Order in Council. Does the Minister concede that the Minister of the Crown cannot be accountable to the Scottish Parliament? To whom is the Minister of the Crown accountable for the exercise of the powers conferred on him under the Order in Council?
      Mr. McLeish: There will be a permanent transfer of Executive powers, and he will be responsible to Westminster. That is the terminology of the Bill, and it is straightforward.
      Mr. Grieve: I appreciate the Minister's comments. Looked at in one way, what he says must be correct. However, in view of the discussion that we have had about the limits on the powers of the Secretary of State for Scotland—I assume that he would be exercising these powers—and the ability of the House to question it, if that unlikely turn of events were to happen, would it not be
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      impossible under the Standing Orders of the House, as they would then be, for us to question him about these matters?
      Mr. McLeish: The hon. Gentleman said that the matter could be looked at from another perspective. I am explaining the issue from the perspective of the Bill. There may be a number of ways of looking at it, but this is a simple process. We are not trying to blur accountability: we are trying to make accountability transparent.
      The Westminster Parliament and Westminster Government and the Scottish Parliament and Scottish Executive will want that transparency. No interest would be served by building into the Bill clauses or amendments that do not have clear demarcations of accountability.
      Amendment No. 143 deals with issues involving United Nations sanctions. The Scottish Parliament will not be responsible for Foreign Office competence, which is a reserved matter. However, it will be involved in the implementation of international obligations, including those under the United Nations Act 1946. The Scottish Parliament would have competence in implementing UN sanctions on goods and services, including agricultural goods and services, and the Bill contains provisions that will enable it to deal with that matter straightforwardly and simply. Clearly, the Scottish Parliament would not have competence in implementing arms sanctions. Legislative competence for foreign affairs lies with Westminster.
      Dr. Fox: Again I am grateful to the Minister for his generosity in giving way. How does the example differ from European rules, which are also part of international treaty obligations and on which the Scottish Parliament will have no discretion on implementation?
      Mr. McLeish: We must implement both, because that is part of the arrangement and we have dealt with that issue. The sanctions issue is not unnecessarily complex. As the Bill stands, the implementation of international obligations such as those imposed by UN sanctions would be within legislative competence in so far as they relate to matters that are not reserved. Therefore, in the context of devolved matters, it would be within the competence of the Scottish Parliament to set up its own regime for implementing UN sanctions.
      The United Kingdom currently implements UN sanctions by means of Orders in Council that are made by the Queen under the 1946 Act. Under the Bill, the power would not be separately exercisable in or in regard to Scotland, so provisions in such orders covering devolved matters in or in regard to Scotland would not be subject to a procedure at Holyrood. It is made quite clear that important considerations on international obligations have a Scottish Executive dimension that could be utilised if necessary.
      9.30 pm
      Dr. Fox: Am I correct in saying that the Scottish Parliament will be responsible for implementing the Scottish practical side of any UN resolution that is agreed by the United Kingdom? Am I also correct in thinking that if, under new clause 19, the Scottish Parliament, for reasons known to itself, chooses not to implement that

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      resolution, it could be implemented by Order in Council by a UK Minister without having to consult a member of the Scottish Executive? Is that a clear representation of the position?
      Mr. McLeish: Yes, but with an addition. Amendment No. 143 adds existing UN sanction orders that have been made under the United Nations Act 1946 to the list of enactments in clause 52, so that UK Ministers can continue to exercise powers under such orders involving the licensing of certain activities on a UK-wide basis, although some of those activities do not relate to reserved matters. The Bill provides that the implementation of international obligations is devolved in relation to devolved matters. That is straightforward.
      Clauses 33 and 54 provide a power of intervention for the UK Government to ensure that such obligations can be met. However, amendment No.143 recognises that it will make some sense for sanctions to be administered on a UK basis, and it allows for that. Hopefully, that helps the process.
      Mr. Dalyell: I asked about Lockerbie.
      Mr. Deputy Speaker: Order. The Minister has not given way.
      Mr. McLeish: As my hon. Friend rose to his feet, I was about to say that I would deal with the matter that he raised.
      The Lockerbie issue was also raised in Committee. The current prosecuting authority functions will transfer from the UK Government to the Scottish Executive. In terms of the Scottish judiciary, the powers of Scottish Law Officers and the Scottish Office will be transferred. My hon. Friend will appreciate, because he has had it from various sources, that the international aspects of the matter will continue to be matters for the Foreign and Commonwealth Office. In a sense, that is a continuation of the current position, with the addition of the Scottish Parliament.
      The Lord Advocate will retain his responsibilities for criminal prosecutions and death investigations. The Scottish Parliament will have legislative competence on criminal law and investigations, but the UK Government will take the lead in international relations in line with the reservation of that matter in the Bill.
      Mr. Dalyell: The matter is not quite as esoteric as it is made out. It is a practical issue. I listened carefully to the Minister. Two Governments will be responsible, and they may not agree on the question of a trial taking place in a third country. To put it mildly, there will be a difference of opinion. I might welcome that, but it is a problem.
      Mr. McLeish: Again, the first part of my hon. Friend's intervention is correct. We are going to have a Scottish Executive and a Westminster Government, but the current functions that we exercise in Scotland will be transferred. I should like to think that, as part of the discussions that we have had this evening and of the wider agreement, we will continue to work closely. It is devolution of
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      responsibility within the UK. It is not creating two separate states, where communication and exchanging information might be that more complex.
      I turn to the points made by the Conservative Front-Bench spokesman, the hon. Member for Woodspring (Dr. Fox), at the start of the debate. The change is part of a technical change to the definition of the executive competence of Scottish Ministers. Amendment No. 138 makes it clear that the Scottish Parliament could not confer functions that are not exercisable in or as regards Scotland. Clause 49 as amended will ensure that only functions that are transferred could be conferred by an Act of the Scottish Parliament.
      In relation to the further points of clarification required on amendments Nos. 141, 142 and 143, the hon. Member for Woodspring is right in his assertion that those are narrow, technical amendments that do not change the substance of the Bill's previous intent.
      Mr. Hogg: Is the hon. Gentleman giving way, or has he ended his speech?
      Mr. McLeish: I am giving way.
      Mr. Hogg: I am most grateful—otherwise, of course, I could make another speech.
      Mr. Deputy Speaker: Order. The right hon. and learned Gentleman is wrong.
      Mr. Hogg: If I have the good fortune to catch your eye, Mr. Deputy Speaker.
      Mr. Deputy Speaker: Not in this debate.
      Mr. Hogg: Therefore, I am very grateful to the Minister for giving way.
      Mr. Deputy Speaker: The right hon. and learned Gentleman should be, in the circumstances.
      Mr. Hogg: I acknowledged it, too.
      There is a point that troubles me about new clause 19. I should like to take the Minister of State back. He has said that a Minister of the Crown can, under an Order in Council, exercise functions of the sort that are normally performed by the Scottish Executive. Where come the funds that underpin the performance of the functions? From what vote will that money come? Will the Minister of the Crown be authorised to spend English money in respect of a Scottish function? What is the authority for that?
      Mr. McLeish: There are two points. Let me reiterate that, if it is an Executive function within the UK Government, the Minister of the Crown is responsible to the UK Government and to Parliament. This is reserved business.
      The right hon. and learned Gentleman is talking about a Minister of the Crown. To reiterate the point I made, if it is a devolved matter, it is entirely a matter for the Scottish Executive. The question was posed to me: what, then, would the resource element of that function be? Clearly, that would vary, depending on which Government

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      function or Department was involved. I have no doubt that that will not provide any extra burden, because we are talking about a process that occurs at present and will continue, but in a different guise with the two Parliaments.
      I have given some clarification. With that, I commend the amendments.
      Amendment agreed to.
      Amendment made: No. 41, in page 11, line 28, leave out from 'functions' to end of line 30 and insert—
      '( ) a judge of any court, or
      ( ) a member of any tribunal which exercises the judicial power of the State, in connection with the discharge by him of his functions as such![Mr. McFall.]

    Clause 24

      WITNESSES AND DOCUMENTS: OFFENCES
      Amendments made: No. 42, in page 12, line 17, leave out 'without reasonable excuse'.
      No. 43, in page 12, line 19, after 'refuses', insert 'or fails'.
      No. 44, in page 12, line 23, leave out 'without reasonable excuse'.
      No. 45, in page 12, line 26, at end insert—
      ( ) It is a defence for a person charged with an offence under subsection (1)(a), (b) or (d) to prove that he had a reasonable excuse for the refusal or failure.'.—[Mr. McFall.]

    Clause 28

      LEGISLATIVE COMPETENCE
      Mr. Dewar: I beg to move amendment No. 130, in page 14, line 6, at end insert
      'or confer or remove functions exercisable otherwise than in or as regards Scotland'.
      Mr. Deputy Speaker: With this, it will be convenient to discuss the following amendments: Government amendments Nos. 131, 132, 223 to 229 and 256.
      No. 110, in clause 29, page 15, line 4, at end insert—
      '(3A) If two thirds or more of the members of the Scottish Parliament vote for a motion requesting modification of Schedule 5, such modification shall be considered by a joint committee consisting of members of the Scottish Parliament and the Parliament of the United Kingdom for appropriate action by both Parliaments.'.
      Government amendments Nos. 258, 203, 234 and 243 to 245.
      Mr. Dewar: I approach this group of amendments with some trepidation, as though tiptoeing into a minefield. I realise that there is no more desperate risk and hazard than the ill-informed question of someone who only half understands the matter. Before anyone takes offence, I should say that, in the past 20-odd years, I have been in that position myself so many times that I know to just what extent the occasional potshot can have a remarkable random success. Moreover, I see before me formidable exponents in the art-such as the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. Member for Beaconsfield (Mr. Grieve), who is an apprentice but learning depressingly fast. There is
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      always, of course, the possibility of a very cheerful foray into the wilderness by the hon. Member for New Forest, West (Mr. Swayne). It is quite a characterful cast.
      In the hope of choking enthusiasm, I should say that most of the amendments in this group are extremely technical and totally without political interest—there is a claim. Although the amendments are grouped under the heading "legislative competence", which is immensely tempting, they are not quite as meaty as that sounds. Nevertheless, on the basis that we still have 20 minutes to go in this debate, perhaps I should start by very pedantically and carefully speaking to Government amendment No. 130.
      I should stress—it is important to do so—that the intention of Government amendment No. 130, which will amend clause 28, is to make it outwith the Parliament's competence
      "to confer or remove functions exercisable otherwise than in or as regards Scotland."
      As hon. Members will instantly realise, the amendment ties in with the Bill's general approach to defining devolved executive competence, whereby devolved functions are to be exercisable only in or as regards Scotland. I think that that is all we need say about amendment No. 130.
      Mr. Ancram indicated assent.
      Mr. Dewar: I am glad, and grateful, to see that the right hon. Member for Devizes (Mr. Ancram) agrees with that.
      We move on to Government amendment Nos. 131, 132, 203, 223 to 227 and 243, which modify the approach taken in schedule 4 to defining the provisions of the Bill itself that are not protected from modification by the Scottish Parliament. The amendments also extend the schedule to protect from modification by the Scottish Parliament the way in which the Human Rights Bill and the European Communities Act 1972 give effect to the key aspects of the European convention on human rights and European Community law in the law of the United Kingdom.
      I should stress that those are technical amendments and do not represent any change of policy. Specifically, they do not affect the powers and responsibilities of the Scottish Parliament and Ministers to observe and implement EC law in relation to devolved matters. Neither will they affect the competence of the Scottish Parliament to legislate on the types of rights and freedoms that are covered by the European convention.
      My right hon. and hon. Friends and I have tabled amendments to the reservation of constitutional matters in schedule 5—which is a matter that we will deal with later, and may give rise to some quite interesting debate. However, again, it is very much a re-arrangement in the interests of clarity rather than a change of direction or of policy. Among other things, the amendments will make it clear that the Union between Scotland and the rest of the United Kingdom is a reserved matter—which is common ground between all hon. Members. Although there are those who wish to change that constitution, I think that they will realise that this Bill is not the vehicle for so doing.
      Mr. Ancram: I hope that I am not pre-empting our debate on the issue, but the Secretary of State mentioned

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      the Union of the United Kingdom being a reserved matter. Does that mean that a referendum on the Union also will be a reserved matter and not available to the Scottish Parliament?
      9.45 pm
      Mr. Dewar: It is clear that constitutional change—the political bones of the parliamentary system and any alteration to that system—is a reserved matter. That would obviously include any change or any preparations for change. I have made that clear in I do not know how many exchanges with the hon. Member for Banff and Buchan (Mr. Salmond) over the years. I have always said to him, and he has always accepted, that it seems that the best way for him of trying to progress his cause—the reason for his party's existence being that he wishes to take Scotland out of the United Kingdom—is by persuading the electorate in Scotland that they should vote for such a change. It is clear that he cannot find a vehicle for doing that in the machinery laid down in this legislation.
      Mr. Ancram: I have listened very carefully to the Secretary of State's lengthy explanation. In very simple terms, does that mean that a referendum on Scotland's future in the United Kingdom is within the competence of the Scottish Parliament?
      Mr. Dewar: If one assumes that that is a way of changing the constitution, no, it is not in the power of the Scottish Parliament to change the constitutional arrangements. Scotland will of course have a right to enter into any debate about these matters in the United Kingdom Parliament, and there will be Scottish representatives to do so. That is as it should be. They will be expected to play a very full and proper part in debates in the United Kingdom Parliament on behalf of their constituents.
      Mr. Grieve rose—
      Mr. Salmond rose—
      Mr. Dewar: I will take the intervention of the hon. Member for Beaconsfield, the successor to Disraeli.
      Mr. Grieve: In the right hon. Gentleman's answer to my right hon. Friend the Member for Devizes (Mr. Ancram), I detected a certain tendency to shy away from the specific question. Clearly, a referendum in itself would not be a constitutional change but a mechanism of consultation. Would the holding of a referendum be within the competence of the Scottish Parliament? I think that that is the nub of my right hon. Friend's question.
      Mr. Dewar: A referendum that purported to pave the way for something that was ultra vires is itself ultra vires. That is a view that I take, and one to which I will hold. But, as I said, the sovereignty of the Scottish people, which is often prayed in aid, is still there in the sense that, if they vote for a point of view, for change, and mean that they want that change by their vote, any elected politician in this country must very carefully take that into account. I do not believe that they will vote for that change, or that
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      there is enthusiasm or a wish for that change. We shall no doubt argue about, debate and analyse that many, many times.
      Mr. Salmond: The Secretary of State will recall among our many exchanges the one on 4 June last year while debating these matters, when he told me in no uncertain terms that the way in which to progress the issue, if I were ever in a position to do so, was to put the question on independence to the Scottish people in a single-question referendum. I take it that he is not retreating from those wise words.
      Mr. Dewar: I am not going to bandy texts. I am always rather touched by the exactitude with which the hon. Gentleman treasures almost every word that I have uttered on this issue, and in the House. I sometimes wonder whether his bedroom walls are papered with such quotations. He will recall that I have consistently argued that the way in which he progresses his cause, to use that term again, is by trying—I believe in vain—to persuade people to vote for candidates who are committed to his point of view. At the moment, he has three colleagues—is that right? It is a modest total.
      Mr. Salmond: Five.
      Mr. Dewar: Oh, five.
      Mr. Salmond: That is worrying.
      Mr. Dewar: If there is anything worrying, it is the ease with which some of us forget some of his colleagues. I accept that it might be my fault. I am not going to pursue that point. In his own political flock, the hon. Gentleman is quite a dominant figure, as has often been said. I accept that he is probably travelling hopefully these days. We shall have to see what the people decide when votes for elected representatives go into ballot boxes. I am sad to see that we have only 12 minutes to go.
      Mr. Dalyell: My right hon. Friend's charm, wit and verbal facility disguise that there has been no answer to a fundamental question. Can the Scottish Parliament of itself initiate a referendum on independence?
      Mr. Dewar: I thought that I had answered that in reply to the hon. Member for Beaconsfield, who looked pleased with my answer because he felt that he had pinned me down. I saw him taking his slightly aggressively green biro pen to note my words. I accept that this is a serious matter. It is my view that matters relating to reserved matters are also reserved. It would not be competent for the Scottish Parliament to spend money on such a matter in those circumstances. The hon. Member for Banff and Buchan may dispute that, but we can return to this argument on another occasion.
      Mr. Salmond: Will the Secretary of State give way?
      Mr. Dewar: No, because I will be criticised for not covering the amendments, and I will be sorry if that happens. If the hon. Gentleman would haud his wheesht, we can come back to the matter.

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      Government amendments Nos. 131 and 132 make a technical alteration to the way in which clause 28 introduces schedule 4, which reflects the way in which the schedule has been restructured by the other amendments. Government amendments Nos. 203 and 243 are purely drafting amendments. The amendment to schedule 7 deletes two lines which previously protected certain provisions in the European Communities Act 1972 from the general modifications made by clause 106. Amendment No. 203 re-enacts this as part of clause 106 itself.
      Parliamentary counsel concluded that it is better drafting if the amendment is made by virtue of clause 106 rather than schedule 7. The policy remains unchanged. Why the Parliamentary Counsel came to this conclusion is not entirely clear to me. However, as they are men of skill—whose expertise has been effectively and creditably displayed in the drafting—I am glad to take their advice.
      There are also some technical amendments to the way in which schedule 4 specifies provisions of the Scotland Bill and other enactments modified by it which are or are not protected from further modification by the Scottish Parliament. In particular, Government amendment No. 224 provides that the Scottish Parliament will be able to modify clause 22(7) which specifies the penalty for a breach of subsection (6) of that clause on Members' interests.
      I have no doubt that there will be a good deal of interest—I cannot avoid the word—in Members' interests in the Scottish Parliament, as there has been in this House. It is a matter for increasing study and, sometimes, speculation. The amendments are consistent with the devolution of matters relating to the criminal law.
      Mr. Heald: The Secretary of State referred to amendment No. 223 and, earlier, he said that the Union is a reserved matter. Under "Acts of Union" in schedule 4—if the amendment is agreed to—the passage will read:
      "Articles 4 and 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 shall not be modified so far as they relate to freedom of trade."
      Does that mean that there are aspects of the Acts of Union which may be modified by the Scottish Parliament, and if so, what?
      Mr. Dewar: This is a belt-and-braces provision which means exactly what it says. The amendments to schedule 4 entrench the provisions of the Acts of Union between England and Scotland which relate to freedom of trade. There might be a semi-respectable argument for saying that that is hardly necessary because the matter is reserved, as the hon. Member for North-East Hertfordshire (Mr. Heald) said. This is not a subject for contention, because there is one thing which unites everyone in the House; whatever final settlement is reached, it is clear that Scotland and England will always need access to each other's markets. Free trade will be a sine qua non. The amendment makes that clear.
      Government amendment No. 227 provides that the Scottish Parliament can modify the Bill's provisions and sets out that Parliament's procedure on subordinate legislation made under the Bill that is subject to procedure in that Parliament. Again, that is consistent—a useful word in this context—with the Parliament having control over its own procedures. As the House will know,
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      we intend to be as flexible as possible—and impose as little as possible restrictive legislation—on the Parliament's procedures and internal arrangements. We hope that the Scottish Parliament can, when the time comes, consider in an enlightened and sensible way the evolution of its own procedures. We do not assume that it will follow the procedures of the House of Commons. It may do so, as some of our rules are based on common sense and have evolved over many years, but it may find new approaches and procedures—we want to leave maximum flexibility for that.
      Government amendment No. 227 also clarifies that the amendments made in schedule 7 to enactments within the devolved field that relate to the role of the Advocate General are to be protected from modification. Hon. Members will remember that the Advocate General is a new inhabitant of the Government—he will be the Law Officer responsible for advising the United Kingdom Administration on Scottish law.
      Government amendments Nos. 228 and 229 extend the list of bodies and offices to which the Scottish Parliament can amend references in the Bill. Government amendment No. 234 is a technical amendment to simplify and clarify the provision in part III of schedule 5 that states how references to enactments in the schedule are to be interpreted. Those references are mostly to the subject matter of enactments, and are used as descriptions of reserved matters. As before, they are to be read as references to the enactments as they have effect on D-day—the day when the Parliament assumes its powers. However, for enactments that cease to have effect between enactment of the Scotland Bill and D-day, the references are to be read as references to the enactments as they had effect immediately before that time.
      If I may hurry on, I shall refer the House to Government amendments Nos. 256 and 258. Clause 29 provides for the list of reserved matters in schedule 5 to be varied by Orders in Council, subject to affirmative resolution at both Westminster and Holyrood. The amendments would enable the consequences of such changes to be provided for.
      Government amendment No. 256 and the first part of Government amendment No. 258 transfer the provision that enables a clause 29 order to modify enactments and other documents from clause 29 to clause 100, where such provisions are generally set out. I do not think that I should labour these points. The amendments tidy up the Bill's drafting in what I hope hon. Members will feel are helpful ways.
      Government amendment No. 244 is a purely technical amendment to ensure that references to an Act of Parliament in section 2 of the European Communities Act 1972 are read as references to Acts of the Scottish Parliament in appropriate cases. Government amendment No. 245 amends section 3(4) of the European Communities Act 1972, which deals with Community instruments in the custody of a Government Department that may be used as evidence in legal proceedings. That extends the scope of the section to include any part of the Scottish Administration.
      I apologise to the hon. Member for North-East Hertfordshire, who I think is preparing to speak, for having left him only two or three minutes in which to make what may be complex points. I thought that it was only polite to try to deal with some of the points that were

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      being put to me and—even though it was a rather hurried Cook's tour—to survey the range of amendments in the group.
      Mr. Heald: We are all pleased to recognise that the right hon. Gentleman has made a colourful picture from what might otherwise be dull material. I want first to ask him about schedule 4 as amended. Government amendment No. 223 lists various provisions that may not be modified, including—as it will be—the Scotland Act itself. However, amendment No. 227 states that the Scottish Parliament may modify section 100, under which a Scottish Minister may exercise his powers by statutory instrument, and section 101(3), which provides for the affirmative procedure.
      Is the Secretary of State satisfied that consistency can be achieved between the measures passed here and those passed by the Scottish Parliament? If the documents are not of the same form and character, difficulties may arise.
      Clause 101(5) says that a recommendation for an Order in council for Scotland can be made only after the matter has been through the House on the affirmative resolution procedure. What are the minimum criteria to be applied for such a recommendation to Her Majesty to have proper force and legitimacy? Clearly, we are working on the basis of a set of parameters and safeguards for subordinate legislation, to ensure that we know exactly how the powers are to be exercised. If there are to be modifications, are there any limits within which that is to happen, and does Parliament have any say in how it might be achieved?
      10 pm
      What is the interaction between the European Communities Act 1972 and the Consolidated Fund as regards the Scottish functions referred to in Government amendment No. 203? The Secretary of State may be able to explain why the provisions of clause 106(2) and (3) do not apply; as time is short, a letter would be satisfactory.
      Can the Secretary of State confirm that both Westminster and Edinburgh would have to pass an order under Government amendment No. 258 and that the procedure would always allow for adequate debate on such orders in both legislatures, given that reserved powers are concerned? What is the interaction between the amendment, providing as it will for a two-way street with Orders in Council, and clause 27(7)? Does the power of this Parliament remain undiminished, and if so, how?
      Mr. Dewar: In the very short time available, I cannot properly answer all those questions. The hon. Gentleman will recall that Government amendment No. 227 provides that the Scottish Parliament can modify the Bill's provisions and sets out the procedures in relation to subordinate legislation made under the Bill, which will be subject to the procedures of that Parliament. It is a narrow point. The Bill contains some prescriptive clauses about procedures. If the Scottish Parliament wants to modify
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      them, it is important that there should be a way of doing so. It is not a major point that should concern the hon. Gentleman.
      Mr. Heald: I asked about consistency.
      Mr. Dewar: I am advised that it will be possible to have consistency, and indeed I have used the word several times. The best thing that I can say to the hon. Gentleman is that I am so advised.
      On the consolidated fund and the European Communities Act 1972, I shall unashamedly accept the hon. Gentleman's invitation to write to him. Indeed, I shall tell him a secret: I suspect that someone else will have to compose a suitable letter, but—
      It being five and a half hours after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to the Order [13 January] and the Resolution [this day], put forthwith the Question already proposed from the Chair.
      Amendment agreed to.
      MR. DEPUTY SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
      Amendments made: No. 131, in page 14, leave out line 7 and insert—
      '(b) it modifies an enactment in breach of the restrictions in Schedule 4'.
      No. 132, in page 14, leave out line 14.—[Mr. Dewar.]

    Schedule 4
      PROVISIONS OF ACT NOT PROTECTED FROM MODIFICATION
      Amendments made: No. 223, in page 58, line 8, leave out from beginning to 'does' and insert—
      PROVISIONS OF ACT NOT PROTECTED FROM MODIFICATION
        'Acts of Union
        1A. Articles 4 and 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 shall not be modified so far as they relate to freedom of trade.

        European Communities Act 1972
        1B.—(1) The following provisions of the European Communities Act 1972 shall not be modified:
        Section 1 and Schedule 1,
        Section 2, other than subsection (2), the words following "such Community obligation" in subsection (3) and the words "subject to Schedule 2 to this Act" in subsection (4),
        Section 3(1) and (2), Section 11(2).
        (2) Sub-paragraph (1), read with section 28(2)(b), is to be disregarded for the purpose of determining whether the exercise of any function is within or outside devolved competence.

        Human Rights Act 1998
        1C.—

        (1) The Human Rights Act 1998 shall not be modified.

        (2) Sub-paragraph (1) does not apply to the modification of sections 12 and 20 of that Act, so far as those sections relate to the exercise of a power by a member of the Scottish Executive.

        (3) Sub-paragraph (1), read with section 28(2)(b), is to be disregarded for the purpose of determining whether the exercise of any function (other than a function of making, confirming or approving subordinate legislation so far as it modifies that Act) is within or outside devolved competence.

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        (4) Sub-paragraph (3) does not apply to the exercise of a function under any of sections 1, 5 and 14 to 17 of that Act.

        This Act
        1D. The provisions of this Act shall not be modified.
        1E. Paragraph 1D'.
        No. 224, in page 58, line 9, after '(6)' insert & 22(7)'.
        No. 225, in page 58, line 10, leave out from beginning to 'does' in line 17 and insert—
        '.—(1) Paragraph 1D'.
        No. 226, in page 58, line 23, leave out 'Section 28(2)(b)' and insert 'Paragraph 1D'.
        No. 227, in page 58, leave out lines 28 to 30 and insert—
        '. Paragraph 1D does not prevent an Act of the Scottish Parliament modifying—

        (a) section 100(1) so far as it relates to the exercise of a power by a member of the Scottish Executive,

        (b) section 101(3), (5)(b) and (8),

        (c) section 102(5) to (7) so far as relating to the Parliament, and

        (d) the reference to instrument in—

        (i) the definition of "subordinate legislation" in section 111(1), and

        (ii) paragraph 7(2) of Schedule 7.

        Enactments modified by this Act
        . The amendments of enactments made by paragraphs 1, 3 and 17 of Schedule 7 shall not be modified so far as relating to the Advocate General.
        . The effect of section 106(3) in relation to any provision of an Act of Parliament relating to judicial salaries shall not be modified.

        Exceptions
        .—(1) This Schedule does not prevent an Act of the Scottish Parliament modifying any reference mentioned in sub-paragraph (2) in any enactment (including this Act)'.
        No. 228, in page 58, line 31, at end insert—
        'the House of Lords'.
        No. 229, in page 58, line 35, at end insert—
        'the Lord President of the Court of Session,
        the Lord Justice Clerk,
        the Chairman of the Scottish Land Court'—.[Mr. Dewar.]

    Clause 29
      RESERVED MATTERS
      Amendment made: No. 256, in page 15, leave out lines 3 and 4.—[Mr. Dewar.]
    Clause 33

      POWERS TO INTERVENE IN CERTAIN CASES
      Mr. Ancram: I beg to move amendment No. 1, in page 16, leave out lines 11 to 34.
      Mr. Deputy Speaker: With this, it will be convenient to discuss the following amendments: No. 5, in page 16, line 12, leave out
      '(a) which the Secretary of State'
      and insert
      'which the Secretary of State, having taken legal advice,'.
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      No. 6, in page 16, line 13, leave out from 'obligations' to end of line 19.
      Mr. Ancram: It is perhaps surprising that, with only one day to go of the 11 days we will have spent on the Bill, we have finally reached clause 33. When the Bill was published, the clause caused a certain amount of consternation, and almost immediately became known as the governor-general clause, or the veto clause. In a Bill otherwise designed to produce and deliver devolution for Scotland, the clause suddenly appears to create an enormous potential road block. For that reason, it is useful to be able to debate it tonight.
      The rather draconian amendments that I have tabled are intended to carry the debate. They are probing amendments; I do not seek to delete the clause. That said, I hope to press amendment No. 5, as it is useful.
      Given the way in which we have dealt with the delegation of powers from this Parliament to the Scottish Parliament, given all the arguments about sovereignty and the practical restraints on it that might exist in the new set-up, and given the powers that are being transferred to the Scottish Parliament and Scottish Ministers, it is extraordinary suddenly to come across a clause that appears to place draconian powers in the hands of the Secretary of State. Clause 33(1) states:
      "If a Bill contains provisions—
      (a) which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations … he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent."
      If there were a clear contravention of international obligations, the Bill would not proceed. None of us would cavil at that, because that power must be within the Secretary of State's responsibility and purview.
      Clause 33(1)(b), however, is rather out of tune with the rest of the Bill. It states that if a Bill contains provisions
      "which are within the legislative competence of the Parliament by virtue of subsection (4) — but which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of an enactment as it applies to reserved matters,
      he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent."
      That is very different. The Secretary of State, a politician, will have the power to decide whether in his view—he will have to state reasonable grounds, which I should like to pursue further—the legislation will have an adverse effect on the operation of some Act that applies to a reserved matter. He will effectively have the power to kill an Act of the Scottish Parliament stone dead.
      That power goes beyond the other powers that the legislation places in the hands of the Secretary of State. I would have understood if the Bill had said that the Secretary of State could, for instance, apply to the courts to decide whether a particular piece of legislation from the Scottish Parliament transgressed the interests of an enactment on reserved matters. The Bill does not say that, however; it says that the Secretary of State himself can make that decision.
      The point is worth exploring further. If I read clause 101(6) correctly, the Secretary of State could make an order that would be subject to the negative resolution procedure. There would be parliamentary scrutiny of the order, but it would be by negative resolution, although the

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      effect of the order would be to prevent a piece of legislation from the Scottish Parliament from being submitted for Royal Assent.
      Clause 33(2) states:
      "The order must identify the Bill and the provisions in question and state the reasons for making the order."
      Perhaps, if I probe a little, the Secretary of State will provide some reassurance. The Bill says that the Secretary of State can say, "In my view, this piece of legislation will have an adverse effect on a piece of legislation affecting a reserved matter." If, however, he is required to give reasons, or to show that he has been reasonable, what test will he have to meet? I am not an expert on employment law—under which the question of reasonableness is often raised—but I think, and will be corrected if I am wrong, that the person making the judgment must show that there has been a proper inquiry, and that there is evidence on which to base the judgment. In employment cases, where facts will decide the matter, I can see that reasonableness might easily be shown. My difficulty with the clause is that the judgment will often essentially be a political judgment, not one that can simply be based on facts. How is the Secretary of State to set out his reasons, which may be challengeable or unchallengeable, possibly by judicial review? I do not know the answers, for which I look to the Secretary of State, who is seeking advice even as I speak.
      Unless there is some control, we are creating, for a Secretary of State who will have almost no other role left on devolution, a power to bring the actions of the Scottish Parliament to a halt. People may ask why I am worried about that, given my views on devolution and the delegation of powers. It is because the purpose of the Opposition throughout the passage of the Bill has been to try to identify the areas in it that could lead to dramatic confrontation between the Parliament and Government in Edinburgh and the Parliament and Government in London. I can see within this draconian power—were it used in a way that ran counter to the wishes of the Scottish Parliament—the epitome of such a confrontation. What will be the criteria by which the Secretary of State will make the judgment. What will be the restraints on the Secretary of State in making it? In what ways can he be challenged?
      Mr. Browne: The basis on which this power can be used by the Secretary of State is clearly set out in the words that the right hon. Gentleman himself read to us. Under clause 33(1)(b), the Secretary of State must have "reasonable grounds to believe" that a certain state of affairs exists. There is no suggestion that he merely needs to hold a view; he must have reasonable grounds to believe. He must thereafter set out the reasons why he believes that he has reasonable grounds.
      Mr. Ancram: The hon. Gentleman is a member of my profession; I should have thought that we should have reasonable grounds to hold a view. There is no identification or definition of what the reasonable grounds are. Such decisions will often be taken on neat little points involving much subjective political judgment. That is when such a provision will lead to confrontation.
      Mr. Hogg: Is there not a further problem? The requirement is not that the Secretary of State believes
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      something, merely that there are "reasonable grounds to believe" something. It might be more reasonable to impose on the Secretary of State an obligation actually to believe the state of affairs set out in the statute.
      Mr. Ancram: I am grateful to my right hon. and learned Friend, who makes my point with even more force. I do not want take up too much time, because other hon. Members wish to speak. I am trying to provide a reasonable and simple solution. The Secretary of State should not be allowed to make such a judgment on his own because of the difficulties that I have identified: he should be required to take advice. In amendment No. 5, I suggest that the Secretary of State should take legal advice before he reaches a judgment—just as it might have been better had an ability to refer the matter to the courts been created.
      Mr. Wallace: If I recall correctly, on Second Reading I asked the Secretary of State whether any decision under the clause would be judicially reviewable, and he said that it would. Is that not a sufficient safeguard?
      Mr. Ancram: I am not certain from my experience of judicial review that I necessarily regard it as a safeguard. It is a way of achieving a remedy. The Secretary of State laughs, but if the law is to be the protection, the sensible thing would have been to create a power for the Secretary of State to refer the question to the courts in the first place. In the absence of that power, my suggestion that he should be required to take legal advice so that he is acting on more than his own judgment represents a sensible compromise.
      The clause as it stands creates, and places in the hands of the Secretary of State, an enormous power which, if abused—which is my fear—could lead to a massive confrontation between this Parliament and the Scottish Parliament. I am trying to avoid such a confrontation. That is why I tabled the amendments, and I ask my hon. Friends to support them, particularly amendment No. 5.
      10.15 pm
      Mr. Dewar: I shall speak reasonably briefly, because I recognise that many other hon. Members want to speak. I want to put a point of view to the House, as that would inform the debate. This is an important debate and I entirely accept that the clause deserves attention. I have no complaint about what the right hon. Member for Devizes (Mr. Ancram) has said and it is proper that we should probe this question, using as a basis for our debate the rather sweeping, albeit perfectly legitimate, amendments that he has tabled.
      The clause refers to the Secretary of State. I make no complaint, but everyone jumps to the conclusion that that will be the Secretary of State for Scotland. That is not necessarily true; it is any Secretary of State. This is one case where I can say, "Not me, guv." If the decision to proceed to use the machinery was within the remit of the Secretary of State for Social Security, he or she would be the Secretary of State who took the decision and came to the House with the invitation to it to act in the way the clause describes. The matter is subject bound: "Secretary of State" is not a prescriptive description of one member of the Government.
      Mr. Alasdair Morgan: Taking that comment in conjunction with the right hon. Gentleman's earlier

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      assurance that such decisions, on reasonable grounds, would of course be subject to judicial review, if the Secretary of State was not the Secretary of State for Scotland but another of the Secretaries of State in this Parliament, in which courts would a judicial review take place—the English courts or the Scottish courts?
      Mr. Dewar: That might be a matter of choice. [HON. MEMBERS: "Oh."] That is not really surprising—what a shriek. As I understand it, those decisions would certainly be justiciable in the Scottish courts, but may I return to that point in a minute if the hon. Gentleman is not satisfied with that answer?
      Let me explain what the clause is all about. We have a situation in which there is a division of responsibility as between reserved and devolved powers. If one takes a simplistic view, one might say that the writ of the Scottish Parliament runs in devolved areas and that there will be reserved areas with which the Scottish Parliament cannot meddle and where its writ does not run. That is the general description of the scheme: a division of responsibilities with strength and internal logic. However, the world of politics and of legislation is not as neatly divided as that—there are no exact demarcations or neat barriers that cannot be crossed—so legislation in a devolved area of responsibility will often have implications for reserved areas and reserved functions.
      We had to consider whether we stood pat on the fact that, if there was some effect on a reserved matter, it would not be competent for the Scottish Parliament to continue, or whether we should find some way of building in a safeguard, so that a knock-on effect was not an abuse of process or something that would cause problems in a reserved area. Although I understand the right hon. Gentleman's point, the power is not a blocking mechanism. I would rather see it as an enabling mechanism, because if we do not have such a piece of machinery—we can argue about the detail—we will be in great difficulties. The Scottish Parliament might find that its room for action was greatly inhibited because almost any legislation in Scots private law—to which, hon. Members will recall, clause 33(1)(b) refers—would have an impact on reserved powers or reserved responsibilities. Many United Kingdom responsibilities operate, by definition, in Scotland, and would therefore be subject to Scots private law.
      I was not prepared to take the rather narrow view that, if there were a reaction, that legislation would probably be called incompetent or would be open to challenge. We therefore sought a balanced way to ensure that the competence of the Parliament—its range of responsibilities—would be exercisable and at the same time would not give rise to abuse.
      Sir Teddy Taylor: Will the Secretary of State give way?
      Mr. Dewar: I will give way in a moment, but this point is important.
      We have struck an important balance in the clause. The Secretary of State will have recourse to the power, but it will be subject to a number of important safeguards. The first is that he or she must believe that there would be an adverse effect on the operation of an enactment as it applied to reserved matters. Secondly, the
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      reasonableness test is built in. There is also the important safeguard that if the power is to be used, a majority in this House must be in favour, and that would not be given lightly.
      Mr. Hogg: The Secretary of State has the power to make an order under the clause. It is not absolutely clear that that is an Order in Council subject to resolution in the House. I know that my right hon. Friend the Member for Devizes (Mr. Ancram) referred to clause 101, but that seems to apply to delegated legislation, and I am not sure that the order-making power to which the Secretary of State is now referring will be subject to the negative resolution procedure. If it will be, where will the negative resolution be made—in the Scottish Parliament or here? If it will be made in the Scottish Parliament, what will happen if the Parliament decides not to approve the order made by the Secretary of State?
      Mr. Dewar: The order would be made in this House by a Secretary of State. [Interruption.] The right hon. and learned Gentleman has asked a question and is now engaged in gesticulation with his colleagues. That order would be laid in this House and would have to command a majority.
      An important safeguard, which was pointed out by the hon. and learned Member for Orkney and Shetland (Mr. Wallace), is that the decision would be open to judicial review. In my view, it would be open to judicial review in the Scottish courts. The courts would have to consider the adverse effects of such an order and apply the reasonableness test. If the Secretary of State were acting unreasonably, clearly the action for judicial review would succeed. I am advised—I can go a little further; because of my days 35 years ago of practising law, I am aware—that the test of reasonableness is not unknown in the law of Scotland. Judicial review is an important safeguard in this case.
      Sir Teddy Taylor: Let us assume that the Scottish Parliament, for good reasons, after careful debate, decided to pass legislation to make separate arrangements for the trial of those who carried out the Lockerbie bombing, and that the Foreign Secretary took the view that, under clause 33(1)(a), that legislation might be incompatible with an international obligation relating to the United Nations. How would that be resolved? Would we tell the Scottish Parliament that it had no right to determine a legal issue relating to a bombing that took place in Scotland in which people were killed? Would the Foreign Office be able to step in and prevent it from doing so? To avoid conflict, we should say what would happen in such a situation. That is a specific, clear question. Would the Foreign Secretary have the right to step in?
      Mr. Dewar: That comes under clause 33(1)(a). If what is proposed by the Scottish Parliament—or by any Government Department in the United Kingdom—is a clear breach of Britain's international obligations, the Government would have the right to intervene. The House has constantly recognised those special and important circumstances, and my answer to the hon. Gentleman is yes. However, that would occur only if there was a breach—or there was held to be a breach—of Britain's international obligations. We could not allow any part of the Government machine, including the Scottish

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      Parliament, to defy a binding international obligation if that breach caused great damage to this country or cost the Government of the United Kingdom substantial financial penalties. We are talking about a very unusual event, and the mechanism takes account of a situation that I do not for a moment envisage occurring. However, it is right that provision should be made.
      I do not know where the Opposition are coming from on this matter—I do not say that in an unfriendly spirit. I stress that the process of government is a process of negotiation and discussion; it is a matter of bilaterals and discussions at an official level. It is ultimately a case of Minister talking to Minister—whether it be the Scottish Executive talking to a United Kingdom Department or United Kingdom Departments talking to each other. All hon. Members are familiar with that process. Common sense dictates, consensus emerges and agreement is reached 999 times out of 1,000.
      Hon. Members must accept that that is the business of politics. I do not know whether the Scottish National party, for example, conducts its affairs on the basis that, if one man says "jump", everyone jumps; or whether sometimes a little discussion and canvassing the merits of a situation lead to a common result. That is certainly what happens in my party; it is what happens in government; and it will certainly happen within the United Kingdom when we have a Scottish Parliament, a Welsh assembly and a United Kingdom Administration. We are nearing the end of a very long process of discussion which I suspect, in almost all cases, will ensure that matters are settled properly.
      Mr. Wallace rose—
      Mr. Dewar: I am sorry, but I want to continue. I said a moment ago that I did not know where the Conservatives were coming from, and perhaps they would care to explain it to me. It seems to me that we have a choice: we can say that, if there is any impact for devolved legislation on a reserved responsibility or enactment, that stops the devolved legislation in its tracks, because it has gone outwith its competence, or some formulation of that kind—in which case, the Government would be open to the charge that we were not meeting the prospectus laid down in the White Paper—or we can say that there must be some proper mechanism that recognises that there will be an impact and provides a remedy, if it is thought that that impact will be adverse, damaging and will go too far. On top of that, we could build in the safeguard of judicial review.
      I see this measure not as a blocking mechanism or governor-generalship, but as introducing a sensible element of flexibility that allows expansion and contraction at the edges of the division between the reserved and devolved functions in a way that is ultimately very sensible and makes the system much more workable. It is the old clichéwhich I used in an earlier debate—of whether a glass is half full or half empty. This measure is a means of ensuring that we enable the Scottish Parliament to fulfil its remit. Without a mechanism of this kind, it would be cabin confined and restricted in a way that most people—including certainly all Scottish parties—would consider to be unacceptable.
      Mr. Wallace: It sometimes seems that we are quibbling about affirmative or negative procedure, but as the
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      Secretary of State thinks that the situation would arise very rarely, and as it would be an important step for a Secretary of State to take, should not the mechanism be affirmative resolution of both Houses, rather than negative resolution?
      Mr. Dewar: Under clause 101(6), as the right hon. Member for Devizes mentioned—I congratulate him on his energy in pursuing the matter to the end—the negative procedure would be used. If the hon. and learned Member for Orkney and Shetland (Mr. Wallace) feels that that would not be a sensible procedure, his hon. Friends can no doubt push that at a later stage.
      I believe that that machinery would have to be used only in very exceptional circumstances. I find it almost inconceivable that the negative procedure would not be invoked if the order was as controversial as hon. Members imagine. Subsequently, if there was no satisfaction, the judicial review process could be invoked.
      Mr. Hogg rose—
      Mr. Dewar: I am sure that the right hon. and learned Gentleman intends to speak in due course, and I understand that other hon. Members want to come in. I have tried to put the matter in perspective and I await the response with interest.
      10.30 pm
      Mr. Salmond: The Secretary of State is aware that clause 33, to which the amendments refer, has been dubbed by the Conservative party the "governor general" clause. If that is the Tories' view, most reasonable people would reflect on how much power the clause puts into the hands of the Secretary of State for Scotland or any other Secretary of State. We have already had this evening an illustration of how political considerations can prevail on the better judgment of Secretaries of State.
      Earlier, the Secretary of State for Scotland suggested that I papered my bedroom wall with quotations of his statements in this place. I do not paper my bedroom wall with them, but I have them in my speaking notes. The right hon. Gentleman will hear a great deal more of them in the coming weeks and months in Scotland.
      In Hansard on 4 June last year, the Secretary of State said:
      "Although the hon. Member for Banff and Buchan is in favour of a multi-option referendum as a general principle, when it comes—if it ever does—to the point where he wishes to implement a specific constitutional scheme, he should put that to the people of Scotland in a single-question referendum to get it endorsed."—[Official Report, 4 June 1997; Vol. 295, c. 433.]
      On 21 May last year, the Secretary of State said:
      "Even though the hon. Gentleman"—
      that is a reference to me—
      "and I may have differences of interpretation, I hope that he will accept that I should be the last to challenge the sovereignty of the people or to deny them the right to opt for any solution to the constitutional question which they wished. For example, if they want to go for independence, I see no reason why they should not do so. In fact, if they want to, they should. I should be the first to accept that."—[Official Report, 21 May 1997; Vol. 294, c. 725.]
      Mr. Dewar rose—
      Mr. Salmond: I shall give way to the Secretary of State in a few seconds. I am illustrating how political

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      considerations can prevail on the judgment of a Secretary of State, which is highly pertinent to clause 33 and the amendments that we are debating.
      In The Herald in May last year, it was reported that the Secretary of State
      "made it clear that there would be no 'glass ceiling' built in. 'The only way in which we could move to independence would be if people voted for independence. That is clearly their right and I would not wish to deny them that right' he said, ruling out any trick in the White Paper."
      The amendments reflect concerns and considerations about whether a Secretary of State may be moved by political reasons to attempt unduly to restrict the ability of the Scottish Parliament to determine the legislation before it. I submit that we have seen an illustration this evening of how political considerations can prevail to turn a Secretary of State who, last year, put forward a perfect democratic prospectus into a Secretary of State who, this year, dissembled and wriggled when asked clear questions to which he had an affirmative answer last year.
      If the Secretary of State goes to the people of Scotland and says that the Government are forming a Scottish Parliament to allow the people of Scotland to determine their own future, and that the Government have signed a Claim of Right which asserts absolutely the sovereignty of the Scottish people, but also says that there must be a safeguard in Westminster so that any Secretary of State can say, "This far and no further—we do not consider this matter pertinent or within the competence of a Scottish Parliament," he will be extremely fortunate to sustain his current position in the opinion polls—never mind the position that the Labour party previously had.
      The amendments are highly pertinent because they illustrate the difficulties and vulnerabilities of investing in a single person or persons abilities and powers to restrict a democratic Parliament when the Secretary of State, or any Secretary of State, as has been clearly illustrated this evening, can be panicked or influenced by political events into changing from what was a clear democratic position last year to a somewhat muddied position this evening.
      Mr. Dalyell: We are in political fairyland. I have worked with nine Secretaries of State for Scotland; all of them had considerable authority as members of the British Cabinet. Some of them, such as Willie Ross, Jack Maclay, who became Viscount Muirshiel, and, I suspect, my right hon. Friend the current Secretary of State, had considerable say in the British Cabinet. The Secretary of State whom we are talking about tonight will be a poor creature after May 1999 whose job will soon evaporate. The Secretary of State for Scotland will have a car, a chauffeur, a salary, he may have a private secretary and he may even have an assistant private secretary, but he will have little else.
      Sooner rather than later, the British Prime Minister, my right hon. Friend the Member for Sedgefield (Mr. Blair) or whoever it is, will want to deal, in relation to Scotland, with the First Minister of Holyrood in Edinburgh. That is the natural course of events. I see the hon. Member for Banff and Buchan (Mr. Salmond) nodding.
      My right hon. Friend implicitly and, indeed, my hon. Friend the Minister of State have recognised that because they have decided where the power is. There is no question about it. I state that as a matter of fact. The Secretary of State whom we are discussing will be a
      272
      Minister of no consequence. I predict that, within months, the Secretary of State will find that he does not have a place in the British Cabinet. He will be moved over, because it is natural that the Prime Minister in London will want to have his discussions with the person in control of the spending Departments. Therefore, tonight's discussion is totally unreal.
      During the debates on the Government of Wales Bill, my right hon. Friend the Member for Llanelli (Mr. Davies) often referred to the unbundling of the United Kingdom. It will be an unbundled United Kingdom, and the Secretary of State, whom we are discussing tonight, will have about as much power as Silver Stick in Waiting.
      Mr. Wallace: I agree with what the hon. Member for Linlithgow (Mr. Dalyell) says about the diminishing powers of the Secretary of State for Scotland. It has been the Liberal Democrats' policy that he would become unnecessary, but I am not sure how that relates to clause 33 and amendment No. 1, tabled by the right hon. Member for Devizes (Mr. Ancram). I welcome the fact that we have had a debate on that clause because it is an important provision.
      When I first read the clause, I thought that it was the "governor general" clause, as it was described earlier, giving huge powers to the Secretary of State to block legislation of the Scottish Parliament. I think that I am right in saying that such a power existed in the 1978 legislation. Under that legislation, any Act of the Scottish Parliament had to obtain the further approval of the Secretary of State for Scotland. We have moved miles from that.
      It is important to put that point into context, although it is difficult to find examples of what is involved. My understanding is that this is a safeguard in relation to a provision that allows the Scottish Parliament to go beyond what would be the case if we strictly adhered to reserved and devolved powers. It allows the Scottish Parliament to take a step over the threshold into the territory of reserved powers, where it makes practical common sense to do so. The Secretary of State would intervene only if that step were one too far.
      I have tried to think of other examples and, for other reasons, happened to read the House of Commons brief on the Late Payment of Commercial Debts (Interest) Bill. It refers to correspondence between Lord Clinton-Davis and Lord Fraser of Carmyllie. Lord Clinton-Davis, on behalf of the Government, makes it clear that interest and late payment of commercial debt will be a matter for the Scottish Parliament, albeit that the legislation before the House will also apply to Scotland. The letter to Lord Fraser states:
      "We see no compelling reason why policy responsibility should be retained by Westminster for late payment legislation, particularly since, as noted above, all other aspects of contract law are to be devolved; hence, this area has not been included in Schedule 5 of the Scotland Bill".
      The Scottish Parliament may amend that Bill, which could have an impact on commercial matters that otherwise would be reserved under head 3 of schedule 5. There would be a lot of sense in that: we would achieve a degree of consistency across a range of interest and late

      273
      payment of debt issues, rather than subject only some contracts to the Bill because they were clearly in devolved areas. Therefore, the provision is welcome.
      Mr. Salmond: I am following the hon. and learned Gentleman's argument carefully, but can he explain why clause 33, which authorises the Secretary of State to
      "make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent",
      could be considered to be a permissive clause, as he is arguing?
      Mr. Wallace: If the hon. Gentleman had followed my argument and tried to understand the issue rather than making political points—although he is perfectly entitled to do so—he would have realised that that provision is related to clause 28, which is the permissive part of the Bill. The Scottish Parliament will be able to step into the area of reserved functions, but if it goes too far, an order would have to be—
      Mrs. Margaret Ewing: How far would the hon. and learned Gentleman let that go?
      Mr. Wallace: The hon. Lady asks how far I would let that go, but the question whether an order applied to reserved matters would have an adverse effect on the operation of an enactment is a matter of judgment. An order must be made subject to approval and subject to judicial review. If the opponents of the provision are proposing that the Scottish Parliament should not have power in any respect to go beyond the threshold between reserved and devolved matters, they will inhibit the Scottish Parliament far more than is allowed under the Bill.
      Mr. Hogg: I shall be brief, although I agree very much with what my right hon. Friend the Member for Devizes (Mr. Ancram) has said.
      I understand the Secretary of State's argument that clause 33(1)(b) is enabling. There is truth in that, for the reasons that the hon. and learned Member for Orkney and Shetland (Mr. Wallace) and the right hon. Gentleman have outlined, but if I were a Member of the Scottish Parliament, I should be extremely uneasy about the clause in its entirety. One must analyse why.
      My right hon. Friend the Member for Devizes passed quickly over clause 33(1)(a), which relates to international obligations. The Secretary of State would have to intervene where an enactment in the Scottish Parliament contravened an international obligation—I understand that—but let us be clear that what is involved is judicial interpretation of whether an enactment in the Scottish Parliament would or would not contravene an international obligation.
      The Bill will give the Secretary of State or his successor—
      Mr. Dewar: The Foreign Secretary.
      Mr. Hogg: The Secretary of State—it might well be the Foreign Secretary—will be given a right to intervene if he
      274
      "has reasonable grounds to believe".
      That is not satisfactory, because the Secretary of State for Foreign and Commonwealth Affairs will not be accountable to the Scottish Parliament; indeed, he is not accountable to this House for the exercise of his power.
      I take the Secretary of State to clause 101(6), which is the order-making power. I have grave doubts about whether the order in clause 33 is covered by clause 101(6). The order-making power under clause 101(6) relates to a statutory instrument containing subordinate legislation. The power of the Secretary of State under clause 33 by order to prohibit an enactment is by no stretch of the imagination subordinate legislation.
      The order power conferred by clause 33 is not subject to parliamentary scrutiny, because under clause 101(6), parliamentary scrutiny is confined to delegated legislation. The Secretary of State should think back to new clause 19, which made specific reference to an Order in Council. An Order in Council is different from an order such as we are now contemplating.
      10.45 pm
      Mr. Dewar: The objection that the right hon. and learned Gentleman is making is not valid, but I take it seriously as it comes from him. The intention is that the order should be covered by clause 33, hence the reference to that clause in clause 101(6), but we shall consider this point if it is troubling the right hon. and learned Gentleman.
      Mr. Hogg: I am grateful to the Secretary of State for his generous response. I see the reference to clause 33, but I also see the reference to a statutory instrument containing subordinate legislation. The order power under clause 33 does not include subordinate legislation: it is merely a prohibiting power, which is different in kind.
      My right hon. Friend the Member for Devizes is right to emphasise that the power under clause 33(1)(a) or (b) is not subject to any obvious control. If we leave aside the question whether it is a negative resolution, the only other remedy is judicial review. It is not clear which court will have jurisdiction: perhaps the Secretary of State will intervene on that point. He will know that it is not the business of a court on judicial review to consider the merits of the order, but merely to determine whether it is intra vires or whether the Secretary of State is acting unreasonably, which is really the same point.
      Mr. Dewar: The right hon. and learned Gentleman is making important points. The judicial review would be taken in the Court of Session in Scotland. It would be a challenge from Scotland and would be dealt with by the Scottish courts.
      There is an important distinction between the governor generalship powers, as they are sometimes called, under the 1978 legislation and the powers in the Bill. Under the 1978 legislation, the Secretary of State could have intervened on the basis that he did not like the policy that was being followed by the Scottish Parliament. The Bill provides an important qualification. It is no good the Secretary of State pleading that he does not like the policy: it must have an adverse impact on reserved powers. That is a sharp distinction.
      Mr. Hogg: That is a good debating point, but it does not go as far as the Secretary of State thinks it does. Under

      275
      the Bill, the Secretary of State would merely have to show that he or she had reasonable grounds to believe that the policy would have an adverse effect. I have never encountered the phrase "adverse effect" in legislation. There is no qualitative assessment of how serious the adverse effect should be. It could be very slight to trigger the power.
      Mr. Salmond: Does the right hon. and learned Gentleman agree that the permissive aspect lies in clause 28? Clause 33, which empowers the Secretary of State to intervene, cannot be considered a permissive clause.
      Mr. Hogg: I think that the Secretary of State has a good point. He is arguing that a total prohibition on the Scottish Parliament to deal with issues that touch on—I use a loose phrase—reserved matters would be a total barrier. He is enabling the Scottish Parliament to pronounce on reserved matters subject to the right of the Secretary of State to intervene if he thinks fit and to other controls. To that extent he is right to say that it is an enabling power. However, he goes further than he should. [Interruption.]
      Mr. Deputy Speaker (Mr. Michael J. Martin): Order. There are many conversations in the Chamber. The right hon. and learned Gentleman is dealing with a complicated matter and he should be heard. Anyone who wants to engage in conversation should leave the Chamber.
      Mr. Hogg: The Secretary of State overstates his position by his failure to acknowledge that the exercise of the power is not subject to effective constraints. In that sense, I agree with the hon. Member for Banff and Buchan (Mr. Salmond).
      Mr. Salmond: Does the right hon. and learned Gentleman agree that if one accepts the basic structure of the legislation, with its reserved and devolved powers, without clause 33 there would be no clause 28? In that sense, it is permissive. Will he comment on the fact that we are debating the adverse effect of an operation on an enactment and not a power?
      Mr. Hogg: On that narrow point, there is nothing between me and the hon. Gentleman. I have said that I agree that, in reality, clause 33 gives an enabling power. However, it is couched in such terms that it will give the Secretary of State unfettered power to intervene.
      Mr. Grieve: Will my right hon. and learned Friend comment on the juxtaposition of clauses 32 and 33? We have been dealing with clause 33, but clause 32 provides specific instances for reference to the Judicial Committee when there is likely to be conflict over competence. Why have clause 33, unless it is to enable action beyond that? I do not understand that.
      Mr. Hogg: I think that the Secretary of State wants to go beyond that for the reasons that he has outlined and for which I have some sympathy. My hon. Friend's point is sound because clause 33(1)(a) deals with international obligations that may contravene an enactment of the Scottish Parliament, and such matters could be put to
      276
      the Judicial Committee. If they were, that would provide some safeguards in the interests of the hon. Member for Banff and Buchan.
      Mr. Salmond: We are debating an amendment that would delete clause 33. Was that amendment moved to enhance or diminish the powers of the Scottish Parliament?
      Mr. Hogg: My right hon. Friend the Member for Devizes moved the amendment so that the House could have a clear view of the extent of the powers that are to be conferred on the Secretary of State. There is a respectable case for clause 33(1)(a), but I question whether 33(1)(b) is quite in that category. [Interruption.]
      Mr. Barry Sheerman: On a point of order, Mr. Deputy Speaker. Conversations are breaking out again. Perhaps the right hon. and learned Gentleman is speaking in some sort of upper-class, barrister gabble that no one can follow.
      Mr. Deputy Speaker: The right hon. and learned Gentleman is in perfectly good order. I can understand him.
      Mr. Hogg: We have known each other a long time and we have become very familiar, Mr. Deputy Speaker. The point that I am making to the House, although not, I think, to the hon. Member for Huddersfield (Mr. Sheerman), is that such powers should be subject to effective constraint. The objection to the clause is that they are not subject to any obvious constraints. That is why I am against the clause.
      Sir Teddy Taylor: I have just a few minutes, but I hope that hon. Members will think carefully about a matter on which I feel strongly—that clause 33 is the basis for a Parliament which, I am afraid, will be a rather pathetic Parliament. It will lead to frustration and will be a source of conflict with the United Kingdom Parliament. I shall give an example.
      Mr. Deputy Speaker: Order. I cannot allow the hon. Gentleman to go wide of the amendment. We are debating the powers of the Secretary of State, not the Scottish Parliament. The hon. Gentleman has had other opportunities to speak about that.
      Sir Teddy Taylor: I am sorry, Mr. Deputy Speaker. I was coming on to that in my second sentence. The Secretary of State is taking the power—the complete power—basically to overrule laws passed by the Scottish Parliament.
      Imagine just one or two examples of what that will mean. I mention one particular one: the Lockerbie bombing, which has haunted many Members of Parliament and others for a long time. If the Scottish Parliament took the view, because this explosion happened in Scotland and because it felt that the people who had lost their relatives and friends in the bombing deserved to find out the answer, that a special Scottish law should be passed on how the case should be tried—and perhaps even on which procedures should be used—and if the Secretary of State, because of advice from the Foreign Office, said, "That Bill is dead," how would the

      277
      people of Scotland feel? I have spent most of my life in Scotland. I know that nothing would make them feel more sick or miserable than if the English Parliament—as they would call it, although it is a UK Parliament—overturned the views of the people of Scotland on that matter.
      Let us think of another issue on which I know people in Scotland feel strongly, and on which I feel passionately and have a recorded interest. Let us assume that the Scottish Parliament takes a strong opinion on opencast coal.
      Mr. Deputy Speaker: Order. Again, the hon. Gentleman must remember that this is a limited debate. I will not allow him to go on to discussions about the Scottish Parliament. With this amendment, we are talking about the powers of the Secretary of State.
      Sir Teddy Taylor: I am sorry, Mr. Deputy Speaker.
      If the Scottish Parliament were to do that, the Secretary of State could step in and say, "That law is dead. That law is finished." Hon. Members should appreciate that, under clause 33, we are basically giving the Secretary of State an unrestricted power simply to walk in and to tell the Scottish Parliament that what it is doing is wrong—because, in his opinion, it conflicts with some international obligation or with some other aspect of Government policy for the UK or for Scotland.
      There is no doubt at all that the wording used causes concern.
      Mr. Dewar: May I in just one sentence say to the hon. Gentleman that he has misunderstood the situation and that the Secretary of State could not do any such thing?
      Sir Teddy Taylor: I am sorry, but the Secretary of State can promote an order, which is put before the House of Commons. That order—it is laid down specifically—can be discussed and Parliament, of course, will decide.
      In this clause, there is the basis for the break-up of Britain. Unless some restriction is placed and unless we have a clear demarcation of the lines of responsibility, whereby the Secretary of State's power is limited or controlled, we are not improving democracy, but paving the way for Britain's break-up.
      Mr. Dewar: Let us take the hon. Gentleman's opencast coal example, because it is interesting. There is no question of the Secretary of State in the UK Government saying, "You cannot pass a law that is properly within the devolved powers, because we do not like it." He could say, of course, that opencast coal was a reserved matter for the Department of Trade and Industry. Without the mechanism I have described, which is in the Bill, the Scottish Parliament might not be able to pass a planning law that had an impact on opencast coal, which is reserved. Therefore, we have to have the enabling flexibility that this mechanism gives.
      Sir Teddy Taylor: That is exactly the point that I am making. I hope that the Secretary of State will think about it because he will have to deal with it. The Bill clearly says that opencast coal is a reserved matter, but there are exceptions to this. Those exceptions could produce
      278
      Scottish law. Having warned him what would happen to the SNP once this came through, I hope that he will think carefully. What if the Scottish Parliament does pass a law and sends it to him, or he is notified of it? What if it is clearly and specifically on planning aspects and, in his opinion, conflicts with Government national policy? There will a row. There will be problems. I hope that the right hon. Gentleman will appreciate and remember what I have said, because we have had sparrings over many years.
      The Scottish Parliament—the Secretary of State will be the recipient of this—will probably pass a law every six months which, unfortunately, under this clause the Government will have to overturn. Just imagine the consequences if that happens. Having come from Scotland, and knowing the strength of the views of the Scottish people, I am afraid that it will cause great anger and distress. Inevitably, it will lead to break-up, and not to better government.
      The Secretary of State may shake his head and think that I am wrong about that, but we should talk about the matter again in two or three years.
      Mr. Grieve: I should like briefly to pick up on the points that have been made on clause 33. The Secretary of State asked where Conservative Members were coming from. We are trying to improve clause 33. Will the right hon. Gentleman re-examine the clause, which will be considered in the other place? It is odd that there is no mechanism of reference to the Judicial Committee of the Privy Council when there is a dispute, and when the Scottish Parliament and Government wish to dispute the competence of the Secretary of State. Such a mechanism would solve many of the problems in clause 33.
      Mr. Dewar: Does the hon. Gentleman accept that there are two distinct issues: vires, and a mechanism to deal with knock-on effects on reserved matters, to allow the flexibility that I have mentioned? Those two different issues should not be confused. I am a little surprised that the hon. Gentleman is confusing them.
      11 pm
      Mr. Ancram: We have had a useful debate on a very important clause. However, we have not clarified the issue—if anything, we have rather muddied the waters, which is a matter for concern. My own view is that the clause still places in the hands of the Secretary of State a draconian power which is inconsistent with the desire of all hon. Members to ensure that the legislation works in a manner that will not cause future conflict between England and Scotland.
      If the Secretary of State is right and the clause is enabling, I am worried, because I can foresee a Scottish Parliament testing the line ever further, to discover how far across the line it can move before it is thought to be acting adversely in reserved matters. I am even more worried by the fact that—as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said—it will be not the Secretary of State who will be dealing with those issues, knowing what they are about, but any Secretary of State in the Westminster Government. Clause 33 would cause only conflict between Edinburgh and London, and we have to prevent that from happening.

      279
      Amendment No. 1 was essentially a probing amendment, and I should like to ask leave to withdraw it. However, I should like to press amendment No. 5, which is a useful answer to the specific conundrum with which we have been dealing.
      I therefore beg to ask leave to withdraw the amendment.
      Hon. Members: No.
      Amendment negatived.
      Amendment proposed: No. 5, in page 16, line 12, leave out
      '(a) which the Secretary of State'
      and insert
      'which the Secretary of State, having taken legal advice,'.—[Mr. Ancram.]
      Question put, That the amendment be made: —
      The House divided: Ayes 132, Noes 296.

      Division No. 273]

      [11.2 pm

      AYES

      Ainsworth, Peter (E Surrey)

      Green, Damian

      Amess, David

      Greenway, John

      Ancram, Rt Hon Michael

      Grieve, Dominic

      Arbuthnot, James

      Gummer, Rt Hon John

      Atkinson, Peter (Hexham)

      Hague, Rt Hon William

      Baldry, Tony

      Hammond, Philip

      Bercow, John

      Hawkins, Nick

      Beresford, Sir Paul

      Hayes, John

      Blunt, Crispin

      Heathcoat-Amory, Rt Hon David

      Body, Sir Richard

      Hogg, Rt Hon Douglas

      Boswell, Tim

      Horam, John

      Bottomley, Peter (Worthing W)

      Howard, Rt Hon Michael

      Bottomley, Rt Hon Mrs Virginia

      Howarth, Gerald (Aldershot)

      Brady, Graham

      Hunter, Andrew

      Brazier, Julian

      Jack, Rt Hon Michael

      Brooke, Rt Hon Peter

      Jenkin, Bernard

      Browning, Mrs Angela

      Johnson Smith, Rt Hon Sir Geoffrey

      Bruce,Ian (S Dorset)

      Burns, Simon

      King, Rt Hon Tom (Bridgwater)

      Butterfill, John

      Kirkbride, Miss Julie

      Cash, William

      Laing, Mrs Eleanor

      Chope, Christopher

      Lait, Mrs Jacqui

      Clappison, James

      Leigh, Edward

      Clark, Rt Hon Alan (Kensington)

      Letwin, Oliver

      Clarke, Rt Hon Kenneth (Rushcliffe)

      Lewis, Dr Julian (New Forest E)

      Lidington, David

      Clifton-Brown, Geoffrey

      Lilley, Rt Hon Peter

      Collins, Tim

      Lloyd, Rt Hon Sir Peter (Fareham)

      Cormack, Sir Patrick

      Loughton, Tim

      Cran, James

      Luff, Peter

      Curry, Rt Hon David

      Maclean, Rt Hon David

      Davies, Quentin (Grantham)

      McLoughlin, Patrick

      Davis, Rt Hon David (Haltemprice)

      Madel, Sir David

      Dorrell, Rt Hon Stephen

      Malins, Humfrey

      Duncan, Alan

      Maples, John

      Duncan Smith, Iain

      Mates, Michael

      Emery, Rt Hon Sir Peter

      Mawhinney, Rt Hon Sir Brian

      Faber, David

      May, Mrs Theresa

      Fallon, Michael

      Moss, Malcolm

      Flight, Howard

      Nicholls, Patrick

      Forth, Rt Hon Eric

      Norman, Archie

      Fowler, Rt Hon Sir Norman

      Ottaway, Richard

      Fox, Dr Liam

      Page, Richard

      Fraser, Christopher

      Paice, James

      Gale, Roger

      Paterson, Owen

      Garnier, Edward

      Pickles, Eric

      Gibb, Nick

      Prior, David

      Gillan, Mrs Cheryl

      Randall, John

      Gorman, Mrs Teresa

      Redwood, Rt Hon John

      280

      Robathan, Andrew

      Trend, Michael

      Robertson, Laurence (Tewk'b'ry)

      Tyrie, Andrew

      Roe, Mrs Marion (Broxbourne)

      Viggers, Peter

      Rowe, Andrew (Faversham)

      Wardle, Charles

      Ruffley, David

      Waterson, Nigel

      St Aubyn, Nick

      Wells, Bowen

      Sayeed, Jonathan

      Whitney, Sir Raymond

      Simpson, Keith (Mid-Norfolk)

      Whittingdale, John

      Spicer, Sir Michael

      Widdecombe, Rt Hon Miss Ann

      Spring, Richard

      Wilkinson, John

      Stanley, Rt Hon Sir John

      Willetts, David

      Steen, Anthony

      Winterton, Mrs Ann (Congleton)

      Streeter, Gary

      Winterton, Nicholas (Macclesfield)

      Swayne, Desmond

      Woodward, Shaun

      Syms, Robert

      Yeo, Tim

      Tapsell, Sir Peter

      Young, Rt Hon Sir George

      Taylor, Ian (Esher & Walton)

      Taylor, John M (Solihull)

      Tellers for the Ayes:

      Taylor, Sir Teddy

      Mr. Stephen Day and

      Tredinnick, David

      Mr. Oliver Heald.

      NOES

      Ainger, Nick

      Colman, Tony

      Ainsworth, Robert (Cov'try NE)

      Corbyn, Jeremy

      Alexander, Douglas

      Corston, Ms Jean

      Allan, Richard

      Cotter, Brian

      Anderson, Donald (Swansea E)

      Crausby, David

      Armstrong, Ms Hilary

      Cryer, Mrs Ann (Keighley)

      Atherton, Ms Candy

      Cryer, John (Hornchurch)

      Atkins, Charlotte

      Cummings, John

      Barnes, Harry

      Cunliffe, Lawrence

      Barron, Kevin

      Cunningham, Jim (Cov'try S)

      Beard, Nigel

      Dalyell, Tam

      Beckett, Rt Hon Mrs Margaret

      Darvill, Keith

      Begg, Miss Anne

      Davey, Edward (Kingston)

      Benn, Rt Hon Tony

      Davey, Valerie (Bristol W)

      Bennett, Andrew F

      Davies, Rt Hon Denzil (Llanelli)

      Benton, Joe

      Davies, Geraint (Croydon C)

      Best, Harold

      Dean, Mrs Janet

      Betts, Clive

      Dewar, Rt Hon Donald

      Blears, Ms Hazel

      Dismore, Andrew

      Blizzard, Bob

      Dobbin, Jim

      Boateng, Paul

      Dobson, Rt Hon Frank

      Borrow, David

      Doran, Frank
      Bradley, Keith (Withington)

      Drew, David

      Bradshaw, Ben

      Dunwoody, Mrs Gwyneth

      Brown, Rt Hon Nick (Newcastle E)

      Eagle, Angela (Wallasey)

      Browne, Desmond

      Eagle, Maria (L'pool Garston)

      Buck, Ms Karen

      Ellman, Mrs Louise

      Burden, Richard

      Ennis, Jeff

      Burgon, Colin

      Etherington, Bill

      Burstow, Paul

      Fatchett, Derek

      Butler, Mrs Christine

      Fearn, Ronnie

      Byers, Stephen

      Fisher, Mark

      Caborn, Richard

      Fitzpatrick, Jim

      Campbell, Alan (Tynemouth)

      Fitzsimons, Lorna

      Campbell, Mrs Anne (C'bridge)

      Flint, Caroline

      Campbell, Menzies (NE Fife)

      Flynn, Paul

      Campbell-Savours, Dale

      Follett, Barbara

      Canavan, Dennis

      Foster, Michael Jabez (Hastings)

      Caplin, Ivor

      Foster, Michael J (Worcester)

      Casale, Roger

      Galbraith, Sam

      Chapman, Ben (Wirral S)

      Galloway, George

      Chaytor, David

      Gapes, Mike

      Chisholm, Malcolm

      Gardiner, Barry

      Clapham, Michael

      George, Andrew (St Ives)

      Clark, Rt Hon Dr David (S Shields)

      George, Bruce (Walsall S)

      Clark, Paul (Gillingham)

      Gerrard, Neil

      Clarke, Charles (Norwich S)

      Gibson, Dr Ian

      Clarke, Rt Hon Tom (Coatbridge)

      Gilroy, Mrs Linda

      Clarke, Tony (Northampton S)

      Godman, Dr Norman A

      Clelland, David

      Godsiff, Roger

      Clwyd, Ann

      Goggins, Paul

      Coffey, Ms Ann

      Golding, Mrs Llin

      Cohen, Harry

      Gordon, Mrs Eileen

      Coleman, Iain

      Gorrie, Donald

      281

      Griffiths, Jane (Reading E)

      McWilliam, John

      Griffiths, Nigel (Edinburgh S)

      Mahon, Mrs Alice

      Griffiths, Win (Bridgend)

      Mallaber, Judy

      Grocott, Bruce

      Mandelson, Peter

      Grogan, John

      Marshall, David (Shettleston)

      Hain, Peter

      Marshall, Jim (Leicester S)

      Hall, Mike (Weaver Vale)

      Martlew, Eric

      Hall, Patrick (Bedford)

      Meale, Alan

      Hamilton, Fabian (Leeds NE)

      Michael, Alun

      Hanson, David

      Michie, Bill (Shef'ld Heeley)

      Harman, Rt Hon Ms Harriet

      Michie, Mrs Ray (Argyll & Bute)

      Heal, Mrs Sylvia

      Milburn, Alan

      Healey, John

      Miller, Andrew

      Henderson, Ivan (Harwich)

      Moffatt, Laura

      Hepburn, Stephen

      Moonie, Dr Lewis

      Heppell, John

      Moran, Ms Margaret

      Hesford, Stephen

      Morgan, Ms Julie (Cardiff N)

      Hewitt, Ms Patricia

      Morris, Rt Hon John (Aberavon)

      Hill, Keith

      Mudie, George

      Hodge, Ms Margaret

      Mullin, Chris

      Hoey, Kate

      Murphy, Denis (Wansbeck)

      Hood, Jimmy

      Oaten, Mark

      Hoon, Geoffrey

      O'Brien, Mike (N Warks)

      Hope, Phil

      Olner, Bill

      Hopkins, Kelvin

      Organ, Mrs Diana

      Howarth, Alan (Newport E)

      Palmer, Dr Nick

      Howarth, George (Knowsley N)

      Pearson, Ian

      Hoyle, Lindsay

      Pendry, Tom

      Hughes, Ms Beverley (Stretford)

      Perham, Ms Linda

      Hughes, Kevin (Doncaster N)

      Pickthall, Colin

      Hurst, Alan

      Pike, Peter L

      Hutton, John

      Pollard, Kerry

      Iddon, Dr Brian

      Pope, Greg

      Jackson, Ms Glenda (Hampstead)

      Pound, Stephen

      Jamieson, David

      Prentice, Ms Bridget (Lewisham E)

      Jenkins, Brian

      Prentice, Gordon (Pendle)

      Johnson, Alan (Hull W & Hessle)

      Prescott, Rt Hon John

      Jones, Barry (Alyn & Deeside)

      Primarolo, Dawn

      Jones, Ms Jenny (Wolverh'ton SW)

      Prosser, Gwyn

      Purchase, Ken

      Jones, Jon Owen (Cardiff C)

      Quin, Ms Joyce

      Jones, Dr Lynne (Selly Oak)

      Quinn, Lawrie

      Keeble, Ms Sally

      Radice, Giles

      Keen, Alan (Feltham & Heston)

      Rammell, Bill

      Kennedy, Charles (Ross Skye)

      Rapson, Syd

      Kennedy, Jane (Wavertree)

      Raynsford, Nick

      Khabra, Piara S

      Reed, Andrew (Loughborough)

      Kidney, David

      Reid, Dr John (Hamilton N)

      Kilfoyle, Peter

      Rendel, David

      King, Andy (Rugby & Kenilworth)

      Robertson, Rt Hon George (Hamilton S)

      King, Ms Oona (Bethnal Green)

      Kingham, Ms Tess

      Roche, Mrs Barbara

      Ladyman, Dr Stephen

      Rooney, Terry

      Laxton, Bob

      Rowlands, Ted

      Leslie, Christopher

      Ruane, Chris

      Levitt, Tom

      Ruddock, Ms Joan

      Lewis, Ivan (Bury S)

      Russell, Bob (Colchester)

      Lewis, Terry (Worsley)

      Russell, Ms Christine (Chester)

      Linton, Martin

      Ryan, Ms Joan

      Livingstone, Ken

      Sawford, Phil

      Livsey, Richard

      Sedgemore, Brian

      Lock, David

      Shaw, Jonathan

      Love, Andrew

      Sheerman, Barry

      McAvoy, Thomas

      Singh, Marsha

      McCabe, Steve

      Skinner, Dennis

      McCafferty, Ms Chris

      Smith, Rt Hon Andrew (Oxford E)

      McDonagh, Siobhain

      Smith, Angela (Basildon)

      McDonnell, John

      Smith, John (Glamorgan)

      McFall, John

      Smith, Llew (Blaenau Gwent)

      McGuire, Mrs Anne

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

      McIsaac, Shona

      Snape, Peter

      Mackinlay, Andrew

      Soley, Clive

      McNamara, Kevin

      Southworth, Ms Helen

      MacShane, Denis

      Spellar, John

      Mactaggart, Fiona

      Starkey, Dr Phyllis

      McWalter, Tony

      Stevenson, George

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      Stewart, David (Inverness E)

      Ward, Ms Claire

      Stewart, Ian (Eccles)

      Wareing, Robert N

      Stinchcombe, Paul

      Watts, David

      Stringer, Graham

      White, Brian

      Stuart, Ms Gisela

      Whitehead, Dr Alan

      Stunell, Andrew

      Wicks, Malcolm

      Sutcliffe, Gerry

      Williams, Rt Hon Alan (Swansea W)

      Taylor, David (NW Leics)

      Taylor, Matthew (Truro)

      Williams, Alan W (E Carmarthen)

      Thomas, Gareth (Clwyd W)

      Williams, Mrs Betty (Conwy)

      Timms, Stephen

      Willis, Phil

      Tipping, Paddy

      Winnick, David

      Todd, Mark

      Winterton, Ms Rosie (Doncaster C)

      Touhig, Don

      Wood, Mike

      Truswell, Paul

      Woolas, Phil

      Turner, Dennis (Wolverh'ton SE)

      Wray, James

      Turner, Dr George (NW Norfolk)

      Wright, Anthony D (Gt Yarmouth)

      Twigg, Derek (Halton)

      Wright, Dr Tony (Cannock)

      Vaz, Keith

      Tellers for the Noes:

      Wallace, James

      Janet Anderson and

      Walley, Ms Joan

      Mr. Jim Dowd.

      Question accordingly negatived.
      More than six and a half hours having elapsed since the commencement of proceedings on the Bill, further consideration of the Bill stood adjourned, pursuant to the Resolution this day.
      Bill, as amended (in the Committee), to be further considered tomorrow.

  Prostate Cancer Screening
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. McFall.]
  11.15 pm
  Mr. Christopher Fraser: I confess at the outset that I am not an expert on prostate cancer, its research, screening or treatment—nor do I have any medical training. I am also pleased to say that I do not have prostate cancer. For this debate, I have consulted widely within the medical profession; I am extremely grateful for the advice and guidance that I have received. I particularly grateful to Dr. James Dobbie, senior clinical research fellow at the university department of surgery at Edinburgh royal infirmary, for the time that he took to explain the issues involved.
  I decided to move outside my field of knowledge because I realised that prostate cancer, its protection and treatment, is a matter of great concern to many of my elderly constituents and to the elderly male population of this country. However, prostate cancer and its associated problems can develop at a relatively early age; as with other cancers, it must be sensible to have periodic checks when young to detect it.
  Nearly everyone to whom I have spoken about the subject knows someone who has been diagnosed as suffering from prostate cancer. It is the third most common cancer death in men—after lung and large bowel cancer—with a mortality rate of about 34 per 100,000 males. Currently, it kills more than 10,000 men a year in this country; by 2015, the figure is predicted to double. It has become a real threat to men's lives, yet many in my constituency believe that it has been largely ignored, whereas medical research on other cancers has been much more generously funded.
  Cynics among us might think that, if the prostate were a female organ, we would be far further advanced in establishing a strategic approach to treatment. As a man, I bow to the dedication with which women campaign vigorously for research into the cancers that affect them, and for the ever-widening screening programmes that are available to them. I suspect that the male of the species is much more reluctant to discuss such intimate matters; many of us believe that our aches and pains will go away if ignored. Sadly, that is not always the case. The Institute of Cancer Research is campaigning to bring men's health issues to light, and to ensure that, where possible, cancers are caught early. I hope that this debate will add weight to that campaign.
  The incidence of prostate cancer increases with age—it is sometimes described as an old man's disease. Only 12 per cent. of clinically apparent cases arise before the age of 65. The prostate is a male sex gland, about the size of a walnut, located below the bladder and in front of the rectum. Symptoms of prostate cancer include difficulties or delays in urinating, urinating more often than usual, pain during urination, a weak stream or blood in the urine, and pain or stiffness in the lower back or hips.
  In contrast to other types of tumour, a unique feature of this cancer is the relatively high incidence of what is known as latent cancer in men over 50. The incidence increases steadily with advancing years, such that more than half of males over 80 have small focal areas of tumour in the prostate.
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  Is it any surprise that many of my constituents are fearful for the future, and distressed that so little is apparently being done? They may not appreciate the fact that only in a restricted number of individuals will those small areas of tumour become aggressive and extend outside the gland to cause clinical problems, and ultimately, for some individuals, death.
  The difficulty is that the medical profession cannot predict with any great accuracy which of the small areas of latent tumour, when detected, will in time become aggressive and life-threatening. The on-going clinical debate concerns how one should treat the finding when a doctor discovers evidence of a focus of latent prostate tumour.
  The characteristic features of a prostate tumour and its behaviour are absolutely central to understanding current medical consensus on the issues of the diagnosis and treatment of prostate cancer. As the House will know, there is currently no national screening programme for prostate cancer. In the absence of such a programme, patients diagnosed with the disease have usually sought help from their doctor following the classic symptoms that I described. Their discomfort is such that their condition is often well advanced.
  Most informed opinion is in favour of careful clinical monitoring of the patient, together with regular blood tests for a protein specifically released by the prostate, known as prostate-specific antigen, or PSA, the level of which in the blood rises if the tumour changes from latency to local expansion and spread.
  Dr. Ian Gibson: Is the hon. Gentleman aware that the PSA test is not absolutely reliable—many women with breast cancer also give off PSA—and that we really need a sensitive genetic test, which will probably come from the human genome project, allowing us to determine whether a benign cancer will move into the malignant state? Treatment could then be targeted accurately to the individual.
  Mr. Fraser: I agree entirely. The problem concerns the way in which the research is done and how the gene is to be identified. Currently, there is literally a wait-and-see process, which is unhelpful and desperately upsetting for those who suffer from the cancer.
  The patient and his family suffer considerably, because it is not clear how the cancer is caused and what can be done when it is diagnosed. It has been said that the majority of sufferers die with, and not of, prostate cancer. My concern is that that clichéd prognosis is breeding complacency.
  Jane Griffiths: The hon. Gentleman mentioned the Institute of Cancer Research. Its campaign, designated Everyman, concerns male cancers in general. Early diagnosis is important, but so is early awareness on the part of the patient and his family. It is especially important to be aware that symptoms such as he described will not be attributable simply to old age, but may indicate a disease that can be treated. With early diagnosis, the trauma can be minimised.
  Mr. Fraser: I thank the hon. Lady; I am indeed aware of that, and such awareness is spreading across a wide age group.

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  I am concerned that funding for vital research is far too low. Prostate cancer research receives less than £1 million a year, compared with £16 million for breast cancer and £40 million for heart disease. Prostate cancer, however, is the third most common cause of male cancer death. It is predicted that it will overtake both lung and breast cancer, and become the most common cancer in the United Kingdom by 2018.
  One obvious possible reason is the increasing age of the population, but we do not know what causes prostate cancer. We do not know whether diet or the environment are relevant factors. There is evidence that men with brothers or fathers who develop the disease are at a higher risk, and incidence is thus likely to spiral. To address that grim future, the medical profession must now actively seek ways in which to treat the cancer, and to try to reduce the number of deaths from it.
  There are three ways in which the medical profession can do that: prevention, the development of more effective treatment methods, and early detection. Although much work is being done on treatment strategy, only early detection is currently available—but here we return to the problem of predicting the future behaviour of any latent focus of the disease.
  In the past few years, a considerable professional and public debate has developed in the United States. Urologists, oncologists and primary care practitioners—along with health planners, health economists and the lay press—have struggled with the complex issues of early detection and screening. That has given rise to both American and European randomised studies in screening for prostate cancer.
  The aim of a screening programme must be to identify, as early as possible, latent tumours that will become aggressive, and to offer treatment that will increase the quality and length of life. Huge strides in molecular genetics are beginning to offer the prospect of more effective screening and more successful treatment. Surely, however, society cannot wait 10 to 15 years until the unequivocal results of the efficacy of early detection and treatment are provided by several international studies that are currently under way.
  I accept that screening creates its own problems, including the over-detection of cancers that are not necessarily life-threatening; the unknown natural history of the disease in different individuals; the fact that screening is costly—although there is a relatively cheap prostate specific antigen test—the natural anxiety associated with screening tests; and the potential harm involved in investigating healthy men. There are also ethical and legal implications, as well as people's natural concern about their insurance premiums.
  We must remember, however, that screening programmes have been accepted by women, who recognise that there may be something wrong with them and who clearly welcome the fact that they are taking control of the situation. The disadvantages that I have listed are considered to be a price worth paying when they are offset against the advantage of early detection and early treatment.
  Mr. Howard Flight: The health authority in my constituency is phasing out
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  screening, on the basis that it is unreliable. I think the gist of what my hon. Friend is saying is that, given the likelihood of detection, phasing out screening is a mistake.
  Mr. Fraser: We are talking about a combination of factors—not just screening, but the research that accompanies it. If screening is not efficient and effective, it can be argued that there is no point in proceeding with such a programme, but if research will lead to better screening, health authorities should take it more seriously.
  If we are to make progress on all fronts, we need vital information that can be gained by screening for prostate cancer.
  For example, does treatment for localised prostatic cancer result in a reduction in morbidity and mortality? Do screening tests identify patients who are curable and need to be cured? What are the best screening tests, and in whom, for whom and how often? Can we afford a national screening programme? That is a major consideration.
  The interim recommendations of the American Urologic Association and the American Cancer Society are:
  "All men over 50 years of age should have an annual rectal examination and Prostatic Specific Antigen blood test performed".
  In this country, the Institute of Cancer Research has expressed grave concern about widespread ignorance among the population about male cancers, including prostatic and testicular cancer. Through its Everyman campaign, as previously mentioned, it is seeking to raise awareness of, and funding for research into, male cancers. I add my voice to that campaign.
  We must work to determine what causes prostate cancer and how to treat it. Then we must establish a national screening programme to give early warning of the disease. Without more funds and a strategic and aggressive research programme, prostate cancer will threaten the lives of increasing numbers of our aging population. We must not allow that to happen.
  11.30 pm
  The Parliamentary Under-Secretary of State for Health (Mr. Paul Boateng): The hon. Member for Mid- Dorset and North Poole (Mr. Fraser) is to be congratulated on having raised an important and topical matter. The Government certainly recognise that prostate cancer poses a serious threat to men's health: 8,254 men died from it in England in 1996. Although it is encouraging that the overall mortality rate has fallen somewhat over the past five years, prostate cancer remains second only to lung cancer as a cause of cancer deaths in men. Unfortunately, as he recognises, there is no clear evidence about its causes. Unlike with lung cancer, where we know that smoking greatly increases the risk, we cannot advise men of ways in which they can reduce the risk of developing prostate cancer.
  Given the circumstances, it is understandable that there should be considerable interest in the prospect of a screening programme similar to the breast and cervical screening programmes to detect prostate cancer at an early stage. It was as a result of, and in response to, those concerns that the Department of Health standing group on health technology made prostate cancer one of its original priority areas for health technology assessment. The Department commissioned two systematic reviews

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  of the diagnosis, management and screening of early localised prostate cancer from the university of Bristol and the Institute of Cancer Research.
  The results of the two reviews were published early last year, and produced a clear recommendation that the current evidence does not support the introduction of a national screening programme for prostate cancer at this time with the available technology. I am well aware that that recommendation came as a disappointment to some, but it is important to understand the reasons for it. The contributions of my hon. Friends the Members for Norwich, North (Dr. Gibson) and for Reading, East (Jane Griffiths) raised some of the difficult and complex issues involved.
  Current evidence suggests that the introduction of a screening programme would result in unnecessary, painful and potentially harmful treatment for many men. The age profile of those experiencing and living with this problem suggests why that might be. Although prostate cancer can be a killer, the evidence suggests that many prostate cancers are slow-growing, and unlikely to cause clinically important symptoms during a man's life, not least when they develop late in life, when other forms of illness responsible for death are more likely to bring about death than the cancer in question. Autopsy studies show that 30 per cent. of men over 50, who had no symptoms of prostate cancer while alive, had histological evidence of prostate cancer at the time of death. That percentage rises to more than 50 per cent. in men over 80 years of age.
  Measurement of serum prostate-specific antigen is the most commonly advocated method of screening for prostate cancer, and my hon. Friend the Member for Norwich, North brings his considerable experience to bear on the issues surrounding PSA. After blood tests showing raised PSA levels, men would be asked to undergo transrectal needle biopsy—TRNB—of several segments of the prostate under ultrasound guidance. It is estimated that between two thirds and three quarters of men undergoing TRNB would not have any form of prostate cancer. Studies also suggest that two thirds of the prostate cancers detected by PSA screening would not be clinically significant.
  Detecting a cancer early is of little value if patients cannot be offered effective treatment. Unfortunately, there is currently no medical consensus about the best way to treat prostate cancer. The most common policy in the UK is "watchful waiting", which may be accompanied by regular PSA testing or physical examinations.
  Radiotherapy is one alternative to watchful waiting. Unfortunately, that treatment may have serious side-effects: damage to adjacent organs such as the gastro-intestinal tract and bladder occurs in 36 per cent. of patients and impotence occurs in 40 per cent. Radical prostatectomy, entailing the removal of the entire prostate, is a common first-line treatment in the USA, and is increasingly used in the UK as well. Again, that treatment entails substantial risks to the patient, including incontinence or impotence. Currently available research indicates that survival with watchful waiting, radiotherapy and radical prostatectomy is relatively high, and does not suggest any significant difference in mortality between the three methods.
  To sum up, there is no reliable evidence to determine whether early detection and treatment of prostate cancer improves survival. The considerable uncertainty about the
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  natural history of prostate cancer, the accuracy of screening tests and the best form of treatment all hamper our ability to make an accurate assessment of the costs and benefits of any screening programme. No one can deny that annual PSA testing will detect a number of clinically important cancers. The health technology reviews suggest, however, that annual testing would also lead to unnecessary anxiety and discomfort for many men, and the possibility of potentially harmful and costly treatment bringing uncertain benefits.
  It is ethical to offer someone a screening test only when it is likely to do more good than harm. Ethical considerations undoubtedly affect judgment as to whether screening is the best way forward. The hon. Member for Arundel and South Downs (Mr. Flight) spoke of the judgment made by his health authority on that question.
  Given the lack of evidence of benefit and the possibility of harm, the reviews concluded that a national prostate screening programme simply could not be justified. It was on the basis of those studies that the national screening committee recommended that there was no case for a national prostate screening programme. That recommendation was accepted by Ministers, and EL(97)12, issued in June of last year, advised health authorities that prostate cancer screening should not be routinely offered to patients.
  This debate gives us an opportunity to look briefly at what the future might hold, because there is undoubtedly a need for further research into prostate cancer. The Government welcome initiatives such as the Everyman campaign launched by the Institute of Cancer Research last year, seeking to raise awareness of male cancers as well as funds for research. There is much that we can learn from campaigns spearheaded in respect of cancers suffered by women, just as there is much that we can learn from women about the importance of self-examination, and of men being less hung up about discussing our bodies, either with each other or with our GPs. We men understand the problems we experience on that. We have to learn to overcome our natural reticence, in the interests of our health.
  The Government are aware of the work of the Prostate Cancer Charity and the Prostate Research Campaign UK. We want to work constructively with the voluntary sector to find the best way to tackle prostate cancer. Several journals, organisations and programme makers also contribute to raising men's awareness of the importance of taking action to assist in the early diagnosis of the condition.
  Prostate cancer remains a priority in the Department's health technology assessment programme. Five proposals for a trial of treatments for the spectrum of prostate cancers likely to be identified by a screening programme are being considered. The average cost of the proposals is £2.5 million. A funding decision is expected next month.
  That will be a significant Government investment in prostate cancer research, giving us a greater understanding of the disease and possible methods of treatment. That knowledge should enable us to make progress in tackling the condition. Although no change in the policy on screening is envisaged in the near future, the national screening committee will continue to keep the issue under review in the light of any new evidence that emerges. As the hon. Member for Mid-Dorset and North Poole has said, it is important to keep research under review.

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  The Government are committed to seeking to provide equal access to high-quality health services. We are giving particular priority to improved cancer services, including those for prostate cancer. We have fully endorsed the recommendations of the Calman/Hine report, "A Policy Framework for Commissioning Cancer Services".
  The report recommended improved organisation and delivery of cancer services through the development of a skilled, multi-disciplinary work force, better co-ordination between primary, secondary, tertiary and the voluntary sectors, and a greater involvement of patients in care and prevention through improved public education, information and counselling. That is already happening in many hospitals and centres of excellence, from district general hospitals to the great teaching hospitals. The Central Middlesex hospital in my constituency is doing important work.
  A great deal of work is under way in the NHS to implement the Calman/Hine recommendations. We shall continue to work on identifying units and centres where, with local agreement, we can ensure that specific cancers are treated at hospitals where particular expertise is being developed. In many regions, that has involved site visits by multi-disciplinary teams to assess cancer provision against agreed standards, to identify strengths and weaknesses, and to agree a time scale for change and improvement.
  In the White Paper "The New NHS", we have set targets for urgent referrals to cancer specialists to catch the problem as early as possible. Everyone with suspected
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  cancer will be able to see a specialist within two weeks of their general practitioner deciding that they need to be seen urgently and requesting an appointment. We shall guarantee those arrangements for everyone with suspected breast cancer by April 1999, and for all other cases of suspected cancer by 2000. The initiative will benefit all cancer patients, including those with prostate cancer.
  I am confident that last year's decision not to introduce prostate cancer screening was correct. The decision was taken responsibly in the light of all the available evidence and after carefully weighing up the potential benefits, the possible harm and the uncertainty surrounding many of the important questions.
  Tonight's short debate has enabled us to consider several issues across the Chamber and for the benefit of a wider audience concerned about the problem. I assure the House that we shall continue to keep the issues under urgent review, taking forward the cause of research. We cannot allow complacency or indifference to creep into our consideration of the issues. Men are challenged to take seriously issues concerning their own health. We look forward to working with the voluntary sector and all those concerned about improvements in men's health.
  I thank the hon. Member for Mid-Dorset and North Poole for enabling the House to debate the issue. We shall continue research in the area. We look forward to a satisfactory conclusion of that work, and an amelioration of the suffering that prostate cancer causes.
  Question put and agreed to.
  Adjourned accordingly at fifteen minutes to Twelve midnight.