ACTS OF THE SCOTTISH PARLIAMENT (Hansard, 11 November 1998)

§ Mr. McLeish
I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker
With this, it will be convenient to discuss Lords amendments Nos. 24 to 33, Lords amendment No. 34, amendment (a) in lieu, and Lords amendments Nos. 35 to 48, 63, 135, 159, 235, 236 and 292.

§ Mr. McLeish
This group of amendments consists, for the most part, of Government amendments to the clauses 412 concerned with the legislative competence of the Scottish Parliament and related matters. However, we will ask the House to disagree with amendments Nos. 32, 33 and 34, and have tabled an amendment in lieu of amendment No. 34 deleting clauses 31(1) and 31(2). With permission, I shall deal with those matters first.
Amendments Nos. 31 to 34 relate to the Presiding Officer veto. The amendment in lieu of amendment No. 34 addresses what will happen if the Presiding Officer decides that a Bill is not within the legislative competence of Parliament. Members of the other place were concerned that the Bill, as originally drafted, would mean that it was possible for the Presiding Officer to come into conflict with Parliament by allowing him to be overruled by it if he decided that a Bill was outwith the competence of Parliament. We appreciate the arguments as to why Parliament should not be brought into conflict with its Presiding Officer and so undermine his or her authority. We accept that those arguments have some force, although we believe that the concerns were overstated in the other place.
However, the amendment made in another place by the Opposition would put the Presiding Officer in a very difficult position. It would mean that the Presiding Officer would have an unchallengeable power to decide on questions of legislative competence. We think that that is an uncomfortable and undesirable position for him or her to be in, and we think that it would be an anomaly to leave the provision in the Bill. It would prevent Parliament from being able to consider a Bill that contained a provision that was outwith the legislative competence of Parliament, even if that provision could be readily deleted or amended during the Bill's passage. Such inflexibility is inappropriate.
We think that it is important that Parliament has the benefit of the Presiding Officer's views as to the competence of a Bill. We have provided that the Presiding Officer should make a statement as to the vires of a Bill. Parliament will no doubt want to pay particular heed to its Presiding Officer's views, and we think that our measure avoids the direct tension that we agree an explicit power to overrule the Presiding Officer might create. It sets up a structure that is far less confrontational and that allows room for Parliament to be advised about competence as it considers any Bill. We think that it gives the right result over all and allows disputes to be resolved in their proper place.
The Bill provides a mechanism that allows for the resolution of disputes over the vires of the Bill. If the Presiding Officer were left with the power of veto in this area, it would mean that the courts, and ultimately the Judicial Committee, could not have any role in reaching a view on questions of vires raised by any proposed Bill.

§ Dr. Fox
Will the Minister clarify at the outset of the debate the role of the Presiding Officer in deciding whether a Bill goes ahead for Royal Assent?

§ Mr. McLeish
If I may be allowed to continue, I hope that I can address that issue in the scheme of things.
We think that it is preferable in some instances to allow a Bill to be introduced so that Parliament may consider the issue that it raises. It may itself decide that something is ultra vires and reject the Bill at an early stage or it may amend the offending provisions. If there is still concern 413 at the end of the process, the Law Officers can refer the matter to the Judicial Committee of the Privy Council. It is much better that those issues can be considered by the Parliament and, if necessary, by the Judicial Committee than simply providing that the Bill cannot be introduced if the Presiding Officer thinks that it is outwith Parliament's competence.
I anticipate that Opposition Members may draw parallels with procedures in this place. However, none of them really holds. What we propose is not the same as asking Madam Speaker to decide that a Bill is a Finance Bill and so should not be considered in another place, for example.
As I have explained, we are considering specifically devolution issues. Provision is made in the Bill to ensure that the courts have an opportunity to determine issues of legislative competence. That will ensure that the boundaries of the Parliament's competence are properly mapped and that a consistent body of law emerges. If we do not remove the veto that is now in the Bill, we risk the interpretation of one office holder dictating the limits of the settlement in areas where the law may be uncertain and subtle. That does not strengthen the position of the Presiding Officer. Instead, it pitches the Presiding Officer into the heart of the political situation at any one time, with no means of escape.
I take up the point made by the Opposition constitutional affairs spokesman, the hon. Member for Woodspring (Dr. Fox). It may be useful to recap the scheme of legislative competence within the Parliament. First, the Minister makes a statement on his view that the Bill introduced by the Scottish Executive is within the legislative competence of the Parliament. That will be straightforward enough, based on advice. The Presiding Officer then makes a statement on the vires of the Bill. Parliament can decide to proceed in the knowledge of the Presiding Officer's views.
The Bill can be corrected or amended during passage through the Parliament if part of it is decided to be ultra vires. If it remains ultra vires, the Law Officers can refer it to the Judicial Committee for a ruling. The Bill cannot be submitted for Royal Assent if it is ultra vires in the view of the JCPC. The Government's proposals allow the Parliament the flexibility to deal with those matters in a mature, responsible but highly structured way. It is important that there are checks and balances. I think that that takes away the problem for the Presiding Officer and fits the Presiding Officer's role neatly into the structure of the Parliament's activities.
Other amendments in the group relate to schedule 4 and clause 28. They are designed to clarify the way in which the Bill defines the legislative competence of the Scottish Parliament. They also amend the powers of intervention of the Secretary of State so that they are available when legislation of the Scottish Parliament makes modifications to the law as it applies to reserved matters which have an adverse effect on the operation of law.
Given the time scale involved for right hon. and hon. Members, I propose that we make those complex changes, remembering that we are taking out the amendment from the other place and substituting in lieu positive amendments to resolve the Presiding Officer's position. Obviously, I hope that that is acceptable to the House.

§ Dr. Fox
This is an extremely important debate in our proceedings. When we saw the Government amendment on Third Reading, we realised that it is not exactly the debate that we thought we would have.
I go back, as I did when we considered the first set of amendments, to what the Secretary of State said at the outset. The right hon. Gentleman said on Second Reading that we would consider events against the worst possible scenario, not the best. He said that we would examine the potential for division and try to ensure that that was removed so that the devolutionary settlement could not be used to drive a wedge between the people of Scotland and the rest of the people of the United Kingdom. That has remained our position.
I worry that the Government have done the opposite of what they originally intended. Originally, the Bill provided for a double-lock mechanism which would prevent the Scottish Parliament from passing legislation that was outwith its competence. In the original Bill, as the Minister correctly said, the Presiding Officer could deem a Bill to be outwith the legislative competence of the Parliament and prevent it from proceeding in the Parliament. Although Parliament could vote to overrule that decision, the Presiding Officer could refuse to present the Bill for Royal Assent. That part of the lock at least seems to remain intact.
In the other place, the Bill was amended to remove the right of the Parliament to overrule the Presiding Officer. We agreed with that provision on the grounds that it weakened the authority of the Presiding Officer and provided a platform for those who sought to use the Parliament to advance the cause of separation by proposing legislation that would clearly be outwith the Parliament's competence.
I take the Minister's point about protecting the Presiding Officer's position. It is a fair point, but it has to be weighed against the possibility of the Parliament's being used to carry forward a legislative process that it knows it cannot take to Royal Assent. I ask the Minister to consider carefully the potential danger that that would introduce. What is open to those who want to take forward legislation that they know is outwith the Parliament's competence and use that Parliament as something quite different from what the Minister intends, which is a legislative body?
What if we have an Administration in Scotland that wants to have a Bill for a referendum on Scottish separation or a Bill to ban nuclear weapons and power stations from Scotland? That would be possible under what the Minister proposes, because such Bills could be taken through the Parliament. Although they might not receive Royal Assent because of the second part of the lock, they could take up a great deal of time. That would provide a useful platform for those who wanted to propagate such views. That is not what the Government set out to provide on Second Reading or during subsequent stages. Indeed, it is not what they argued in the other place. However, an entirely different animal is emerging, and it is strange that we get it so late in our proceedings.
With all due respect to the Minister, I must say that, in trying to protect the position of the Presiding Officer, he has moved far too far in the other direction and is creating a dangerous situation which I do not believe that the Government wanted to see. It could not be further from 415 the position that was outlined in the original draft of the Bill. I expect that the hon. Member for Banff and Buchan (Mr. Salmond) will support the Government's change more than he supported the provisions in the original Bill, which worries me a great deal.

§ Mr. Salmond
Does the hon. Gentleman not feel or understand that the formulation put forward by the Lords, and supported by him this evening, would make the Presiding Officer's post essentially a political one? The Parliament's very first debate would effectively capture the Presiding Officer's post. It would become a sort of presidential role vis-a-vis the Parliament. Under the hon. Gentleman's formulation, those arguments would be put through the person of the Presiding Officer. The hon. Gentleman must understand that political arguments will take place. There is no legislative way in which to remove political arguments from a Parliament. It would be beneficial if political arguments were pursued on the basis of argument, and not through the person of the Presiding Officer.

§ Dr. Fox
There were the two mechanisms in the original draft of the Bill. There was the right of the Parliament to override what the Presiding Officer was doing. We find now that we are faced with something completely different. I am not entirely unsympathetic to the argument that the hon. Gentleman advances, but it is up to those in the Scottish Parliament to choose the Presiding Officer. It is essentially and unavoidably a political decision, and obviously that would be taken into account.
We have now lost the double lock. The Minister shakes his head; if he can answer my question, I shall be glad to hear what he has to say. I believe that we could be providing a platform for a series of Bills that could never become law because they would be beyond the legislative competence of the Parliament. None the less, they could be taking up parliamentary time. Is the Minister able to confirm that that is not so? If he can confirm that, that would be a major consolation to Opposition Members. However, I doubt that he will be able to do that.

§ Mr. McLeish
A sensible perspective must be applied to the debate. We are talking essentially about the role of the Presiding Officer and trying to clarify his or her role in the Parliament, which is a very important one. I think that the hon. Member for Banff and Buchan (Mr. Salmond) raises the spectre, if we pursue part of the discussion, of a very political Presiding Officer. That is the last thing that anyone wants. That is not the function of a Presiding Officer. Certainly, the Presiding Officer will still have a role, as advocated by those on the Opposition Front Bench, in considering the question of vires. I can reassure the House that it is not the Government's intention in any way to dilute the strength of the legislative competence process within the Parliament. Indeed, if hon. Members look at the steps that I have already outlined—involving the Minister, the Presiding Officer, the Law Officers, the Judicial Committee, the Royal Assent and the Secretary of State being able to intervene if the matter that is dealt with impinges on reserved matters at Westminster —this is a serious process.
416 I am sorry that this is such a long response, but is the hon. Gentleman suggesting that the 129 MSPs will be less responsible than we are, and less responsible than councillors operating in every council chamber throughout the United Kingdom? This is a serious business. Not only do we have a serious issue, but it is backed up by a substantial, intense process. However, tonight, we are clarifying the role of the Presiding Officer.

§ Dr. Fox
I hope that the Minister will take it in the way that it is meant when I say that I do not doubt for a moment his sincerity, but that is an example of the most breathtaking naivety that we have seen since the beginning of the Bill's passage. If we are working against the worst case scenario, what if there is a majority in the Scottish Parliament composed of nationalists, separatists and their allies, and what if they want to use the Scottish Parliament, as has always been the fear in this House, for their legitimate ends, as they see it—to drive a wedge between the people of Scotland and the people of the United Kingdom? The Government are now providing them with an easier mechanism than they had before. This is the vehicle that they would like to have.
That will make it easier for Bills to be introduced—potentially by a nationalist working majority—that, under the previous formulation of the Bill, would not have been within the competence of the Scottish Parliament and therefore could not have been introduced.
The amendments are a watering down of the safeguards that we believed we had been given by the Government during the earlier stages of the Bill. They have made the worst case scenario far more likely. They have been bending backwards to satisfy nationalist opinion. It is being done under the guise of protecting the Presiding Officer's position. Perhaps it is even done genuinely in the belief that the Government are protecting the Presiding Officer's rights, but the effect is to provide a vehicle for those who want to use the Scottish Parliament as a platform for division.

§ Mr. McLeish
With the greatest courtesy, because I always try to pick my words carefully, let me say that that was arrant nonsense. Let us be careful about mixing political issues, in reference to the hon. Member for Banff and Buchan, and the technical legislative competence issue with which we are dealing this evening.
The point is simply this. We have a strengthened position because we are clarifying the role of the Presiding Officer. In the previous—

Mr. Deputy Speaker
Order. Much as I like to give leeway to a Minister when he replies, the rules of the House still apply. Perhaps the Minister can take the opportunity to wind up on the amendment.

§ Dr. Fox
I am not at all convinced by the argument and, as this goes on, I am becoming more and more disturbed by the fact that the Government have failed to grasp the danger that is presented to them. I hope that this 417 provision will be looked at again in another place, because a major flaw in the Government's plans is coming through.

§ Mr. McLeish
Will the hon. Gentleman give way?

§ Dr. Fox
I give way, with your permission, Mr. Deputy Speaker.

§ Mr. McLeish
In the other place, this concern was not raised in the specific way that is being discussed this evening. The amendments are about the role of the Presiding Officer. Let me repeat the position very briefly. It was indeed strengthened because we have a series of steps, checks and balances.
Does the hon. Gentleman suggest that MSPs will sit day in, day out to discuss legislation that is not within their competence? I cannot accept that as a notion, but, of course, a set of steps is included in the Bill that will ensure that that simply does not happen. The hon. Gentleman should be reassured by that. I caution him against using words such as "dangerous" and "naive", because this has been a well-worked-out process and, at the fag end of the discussions in Parliament, we hear those statements being made.

§ Dr. Fox
It is such a well-worked-out process that we had 180-odd groups of amendments in the other place to put right the defects in the Bill. I accept that the Minister's intentions are entirely honourable, but I think that the Government have got this wrong. I simply do not believe that a nationalist majority in a Scottish Parliament would not use everything possible to try to drive a wedge between themselves and this Parliament in Westminster. If they believed that they could take through a series of Bills that they knew would not have legislative competence and could not possibly go for Royal Assent, but advanced their commitment and their campaign for separatism, they would do it.
It amazes me that any Labour politician could still be willing to take a risk on what the nationalists might be willing to do were they to get a strong foothold in a Scottish Parliament. This is a recipe for division. It removes the safeguards that we had. Why do the Government not believe that it would be better to prevent such ultra vires legislation from being aired in the first place, instead of having it messily blocked at the end of its legislative passage? What we had during the earlier stage of the Bill was a lock; what we now have is guidance.
That may be to the benefit of the Presiding Officer standing. I do not have a particularly strong position on that one way or another, but I know that it increases the danger of a Scottish Parliament dwelling on legislation that elements of the Scottish Parliament may wish to put forward for political ends, but they know could not receive Royal Assent because it is outwith legislative competence. That is made easier by this process, not harder.

§ Mr. McLeish
Again, with the greatest courtesy, I am trying to rescue the hon. Gentleman from the political ferment that he is trying to generate around him. 418 The original provisions would have allowed the Parliament to decide to overthrow the Presiding Officer and continue to debate a Bill that was outwith its legislative competence, so he cannot make this great stramash and create a situation that never existed.
What we are talking about—I return to it again—is clarifying the role of the Presiding Officer, and then the whole system of checks and balances is still in place. It makes it simpler. It makes it clearer, but the central issue is this: the hon. Gentleman must not confuse political concerns about any political party with a Bill procedure that is designed to achieve the objective of having ultra vires issues dealt with at every step of the process.

§ Dr. Fox
The role of the Presiding Officer fundamentally changes through this alteration in the Bill because, previously, there was the ability at the beginning of the legislative process to say, "The Bill is outwith the legislative competence of the Parliament and cannot go further"—at least that was the position after the Bill was amended in the other place. What the Government now propose is that the process can be stopped only at the Royal Assent stage. That brings a whole new political complexion.

§ Mr. McLeish
Will the hon. Gentleman give way?

§ Dr. Fox
I will give way in a minute.
The Minister tries to draw a line between the politics of the Parliament and the procedure of the Parliament. I think that he is in grave danger of not understanding the danger that is left open here. I hope that he will think again. I will leave it to him to sum up. This major change has come very late on in the passage of the Bill. It seems to be a minor change, but it could fundamentally alter the way in which legislation is taken through the Scottish Parliament.
I caution the Government. They are making a grave error. They need to think about this matter again before someone takes advantage of a situation that they did not really intend and leaves us with the most dreadful consequences, which all of us fear just may be possible.

§ Mr. Salmond
The hon. Member for Woodspring (Dr. Fox) is confusing two different things. He seems to believe that we can formulate a series of Standing Orders or procedural mechanisms to block political will. Not even his great heroine, Lady Thatcher, believed that. I may be doing her a slight injustice in trying to paraphrase her autobiography "The Downing Street Years", but it ran something like this: "Scotland is an ancient nation. If the Scots were ever to determine on independence, no English politician, certainly not me, would gainsay the process." The quotation may not be exactly right, but it is certainly proximate.
What the hon. Member for Woodspring seems to be saying is that, if people in Scotland determined on independence—or put a nationalist majority in the Scottish Parliament—his procedural mechanism, the blocking mechanism through the persona of the Presiding Officer, would be the ace card to defend the Union. If he actually believes that and if, first, he wants to hold out against the democratic mandate of the Scottish people and, secondly, he believes that the way to frustrate that is 419 by a procedural blocking mechanism, he has a great deal to learn about political reality and real politics. He also has something to learn about democracy.
I may not ever say this again, but I prefer Lady Thatcher's view on those matters and on the democratic mandate to the view now espoused by Conservative Front Benchers. I thought that, under new Conservatism and the listening to the people exercise, the days of telling Scotland what it could and could not do were meant to be over. I thought that, under new Conservatism, elements of democracy were being introduced to the party's internal procedures and, by extension, it would recognise the will and democratic view of the people. In the last 10 to 15 minutes, that whole principle has been turned on its head. We are now back to the days of "nanny knows best"—going even further than the great nanny herself, Lady Thatcher, in her autobiography.
I caution the hon. Member for Woodspring. First, he should accept democratic procedures and the democratic will of the people. Secondly, he should not believe that it is possible to devise a procedural mechanism to frustrate open and democratic political debate.

§ Mr. Dominic Grieve (Beaconsfield)
Without subscribing to the apocalyptic view of a challenge by the Scottish Parliament that goes directly against the sovereignty of this Parliament, I have some concern about the way in which the Bill, as it is now intended to stand, will operate. As the Minister rightly said, let us forget about challenges where the Scottish Parliament decides to be bloody minded and pass legislation that it knows perfectly well it does not have the necessary vires to implement. Ultimately, that would take us to the situation in Ireland in 1918, where groups of Members of Parliament detached themselves and claimed that they had sovereignty. It is an apocalyptic view and not something that I hope will happen.

§ Mr. Swayne
Does my hon. Friend accept that, earlier this evening, that point of view was put by the hon. Member for Dundee, East (Mr. McAllion)?

§ Mr. Grieve
An apocalypse may happen. I take the view that, if we get to that pass—we debated this matter at great length during other stages of the Bill—it will emerge whatever the procedural mechanisms are. To that extent, I do not think that there is much that we can do to prevent it.
My main concern is about ensuring smooth government. That implies—the Minister accepted it—that there will be areas where the precise borderline of the competence of the Scottish Parliament may be in doubt, even if there is good will on all sides. In those circumstances, prudence dictates that there should be some mechanism by which legislation, before it is introduced in the Scottish Parliament, can be subject to scrutiny.
I take the Minister's point about not placing on the Presiding Officer a burden that might politicise his position, to the prejudice of his standing and reputation for impartiality within the Parliament. That problem could be cured if there were some mechanism for reference to the courts at an earlier stage. For example, if the Presiding Officer were concerned that a piece of legislation 420 appeared to be ultra vires, he should be able to obtain the court's opinion. We do not have that mechanism. There is a danger that people will be encouraged to believe that the Scottish Parliament has a competence to implement legislation, and then subsequently be disappointed because it does not. It is not a question of making political points about independence or what is within the scope of the Scottish Parliament; it is a matter of day-to-day realities.

§ Mr. Salmond
The hon. Gentleman is making a speech that is much more sensible than the one made from the Opposition Front Bench. Perhaps there should be a reshuffle. Was not the Conservative party's previous position that devolution made independence inevitable? "Inevitable" was the word used. Therefore, does that not make the Opposition's anxiety even more difficult to understand? Or is it something else from the previous Parliament that the Conservative party wants us to forget?

§ Mr. Grieve
The hon. Gentleman knows that I was not in the previous Parliament. He also knows from my speeches in earlier debates that, although I want to preserve the Union and have serious reservations about whether devolution will work, I want to try to make it work. I am a Unionist, so any suggestion that I make is in the spirit of trying to make the system work.
I hope that, even at this 11th hour and 59th minute, the Minister will consider my suggestion. Ultimately, the judiciary will have the final say on the legislative competence of both this House and the Scottish Parliament; so, unless there is a mechanism by which prior reference on a matter of serious doubt can be made before legislation is introduced, people are likely to be disappointed. Also, time is likely to be expended and prove fruitless.

§ Mr. Gorrie
There are three positions on this issue. There are the first thoughts of the Government as included in the original Bill: that the Speaker of the Scottish Parliament could say that a Bill was not for discussion, but the Parliament could then vote to overrule that. The second position is that taken by the House of Lords: that the Speaker could make such a ruling and the Parliament could not overrule him. The third is the Government's second thought: scrub the whole issue. That is an intelligent second thought.
Earlier, in the debate on a previous amendment, I was greatly encouraged when, almost for the first time in a debate on Scotland, we had some intelligent Conservative speeches and interventions. I am afraid that, since then, the Opposition Front Bench has reverted to the old gramophone record. It is not realistic to expect a Parliament not to debate something that it wants to debate.

§ Mr. John Hayes (South Holland and The Deepings)
Throughout time and across the globe, democratic bodies have had limits on their competence and, therefore, limits on the matters that they may rightly consider. It is a nonsense to confuse procedure and politics, as the hon. Gentleman must know from his experience in local government. There are limits to debate based on competence. That is not an unreasonable practice in a sound democracy.

§ Mr. Gorrie
I do not agree with the hon. Gentleman. My experience of democratic bodies is that they debate 421 all sorts of things. A council can debate whether nuclear weapons are a bad thing, or that Iraq is a bad place. It knows that it has no power over those matters, but it can debate them.

§ Dr. Lynda Clark
The hon. Gentleman may be confusing debate and legislation. There is obviously a big difference between debate that does not lead to legislation and debate that does. Perhaps the hon. Gentleman would consider that.

§ Mr. Gorrie
The hon. and learned Lady anticipates my argument. I am not totally stupid, although I say it myself.
We will not stop a body debating. The Conservative argument is that it is wicked for a putative Scottish Parliament with a putative majority for independence to discuss a Bill about independence. My point is that it can discuss a motion saying that it would be very nice if Scotland were independent. Everyone agrees that that would be intra vires. If it were a Bill, it could be ultra vires. We cannot stop the Scottish Parliament discussing whatever it wants to debate.
The Government's second thought is sensible because to set the Parliament against the Speaker would be a bad thing. One of the important aspects of the Westminster Parliament is that, if Madam Speaker tells me to sit down, I do so and there is no messing about. If I had just previously in the Scottish Parliament voted to overrule a Speaker's ruling, that would diminish the power of the Speaker and might cause trouble in Parliament.

§ Dr. Fox
Self-evidently, a Parliament can debate anything that it wants to debate. The hon. and learned Member for Edinburgh, Pentlands (Dr. Clark) was correct to say that there is a difference between a subject that the Parliament might debate and subjects on which it might legislate. We are talking now about the Parliament's legislative competence. What would be the point of the Parliament embarking on the process of legislating on a subject in which it knows that it has no competence, and to create legislation that it knows, ultimately, cannot receive Royal Assent?

§ Mr. Gorrie
The hon. Gentleman answers his own question. If the Parliament has any brains, it will not go down that path. It is ridiculous to contend that the Union will somehow be destroyed if the Scottish Parliament considers a Bill that is ultimately said to be out of its powers, whereas, as everyone agrees, it is within the Parliament's powers and causes no problem for it to debate and pass motions on the very same issues. It is ridiculous to make such a distinction.
If the Parliament wants to discuss an issue, it will discuss it. If the Parliament knows very well that a Bill will never be passed because it is ultra vires, it would only bring itself into public disrepute by continuing to try to pass it. Even if I were elected to the Parliament and were stupid, there would be 128 other people with more brains than me, who would not do such daft things.

§ Dr. Fox
That is the precise worry. If I were a separatist, I would want to pursue a legislative path that would bring the Parliament into conflict with 422 Westminster, thereby creating as much of a public fuss as possible. That is the exact recipe that nationalists seek, and it is exactly what the Government are proposing. There is a huge difference between debate and legislation, which is why we are trying, in schedule 5, to limit the Parliament's legislative competence. The Government's proposals make it more likely that the provisions could be abused by those who want only greater division.

§ Mr. Gorrie
The hon. Gentleman has lived for some time in the Conservative party and therefore sees life as one huge conspiracy, but I do not see things in that way. The Parliament will be responsive to public opinion. It is ridiculous to suggest that Members of the Scottish Parliament would deliberately waste lots of people's time voting on matters on which they cannot legitimately vote. They will be allowed to debate and air issues, get their headlines in newspapers and their soundbites on television because of motions and other absolutely legal means.

§ Mrs. Laing
Does the hon. Gentleman accept that, procedurally, there is a big difference between a debate or a motion designed to air views on a subject and introducing a Bill—which is what Conservative Members have been talking about? The Parliament's procedure on introducing Bills is the matter that could drive a wedge between the Bill's provisions and the will of the future Scottish Parliament

§ Mr. Gorrie
I do not accept any of that. Politicians want their soundbites, their appearances on television and their headlines in newspapers, and they will get them regardless of whether they are debating a motion or a Bill. If Members of the Scottish Parliament introduce ultra vires Bills that everyone knows will not be allowed to reach fruition, they will only subject themselves and their party to ridicule, which they will not want to do. The entire basis of Conservative Members' argument is therefore absurd, and shows their party's total divorce from reality.

§ Mr. Hayes
Will the hon. Gentleman give way?

§ Mr. Gorrie
No; I have gone on long enough, as have all the objections.

§ Mr. Swayne
Having had some optimism over the summer months, I am now filled with the forebodings that filled me in our previous debate on the Bill. The entire matter seems now to have the potential for going off the rails. Despite the common ground that was established in the previous debate on both sides of the House—with the possible exception of those on the Treasury Bench, and one or two other Labour Members—the gulf between us seems to have re-opened. I shall take the risk of being accused of playing the same old gramophone record by saying that it all boils down to an issue that, time and again, we hammered out in the Bill's Committee stage: the issue of good will, and the Bill's reliance on it.

Mr. Deputy Speaker
Order. I ask the hon. Gentleman to remember that we are debating a Lords amendment. He should confine his remarks to that amendment and not speak about the Bill in its entirety.

§ Mr. Swayne
The hon. Member for Edinburgh, West (Mr. Gorrie) has drawn attention to the need for 423 good sense. Conservative Members are not persuaded that good will will be enough. We want to maintain the Lords amendments as they are—as they would ensure that the procedures will act to prevent such problems from arising, rather than having to rely on good will.

§ Mr. Hayes
I am grateful to my hon. and gallant Friend for giving way. On the matter of precedents of ultra vires in local and other authorities, does he agree that, contrary to the comments of the hon. Member for Edinburgh, West (Mr. Gorrie), most democratic institutions are limited in what they can pass into legislation—for want of a better term? As the hon. Gentleman said, one may have a debate on any matter. However, as the hon. and learned Member for Edinburgh, Pentlands (Dr. Clark) said, legislating is a very different matter. The problem with the Government's proposals is that they create the potential for debate not on broad matters of academic importance but on legislation. That is the key to the matter.

§ Mr. Swayne
I agree with my hon. Friend—although I should correct him on his nomenclature in referring to me. His comments seemed to be absolutely elementary.

§ Mr. Hayes
On a point of order, Mr. Deputy Speaker. The nomenclature that I used was "hon. and gallant Friend". I believe that my hon. Friend is a serving member of the forces. Was I incorrect in that?

Mr. Deputy Speaker
The title used to be reserved for use in addressing those holding gallantry awards. I do not know whether the hon. Member for New Forest, West (Mr. Swayne) holds a gallantry award.

§ Mr. Swayne
Although I wish that I did hold a gallantry award, the sad fact is that I do not, Mr. Deputy Speaker.
I share the views of my hon. Friend the Member for Beaconsfield (Mr. Grieve) and believe that there was much sense in what he said. Unfortunately, we are not considering a Bill or an amendment establishing the type of structure that he favoured. We are offered the Bill with either the Lords or the Government amendments, and I tell the House that I prefer the Lords amendments.
Let us just consider the possibilities. Let us suppose that daft or stupid—as the hon. Member for Edinburgh, West suggested—Members of the Scottish Parliament, whatever their motivations, introduced Bills in the Parliament to ban nuclear weapons on Scottish soil, for example, or to provide more generous social security provision in Scotland. Both measures might be very popular, and proceeding on them in the Parliament might offer great scope for making political capital. However, doing so would be ultra vires.
I think that it would be much better to have that inevitable political argument and battle at the outset. Everyone agrees that we cannot keep politics out of the matter and that the Parliament will discuss what it will discuss regardless of the rules. Nevertheless, it is better to have the battle at the outset, as the Lords amendment would provide, than to let the matter run its course and to have the battle at the end. Although a battle at the outset would politicise the position of the Presiding Officer, it would be better to let his office take the strain and be politicised. The effect of letting him take the heat of 424 taking the decision will be to give the impression that the Scottish Parliament has limited itself in consideration of the topic. To do it the other way round, and to let a measure proceed through the Parliament until it is finally ruled ultra vires, would give the very different impression that Westminster had thwarted the will of Holyrood, rather than that Holyrood had limited itself according to the law. That is a key difference and it is preserved by the Lords amendments. We should agree with the Lords in that.

§ Dr. Fox
To put it in a nutshell, does my hon. Friend agree that it makes nonsense of schedule 5 and the division between reserved and devolved powers for the Parliament to follow a legislative process that cannot be completed because it is beyond the legislative competence of the Parliament? Does that not make a mockery of what we have been doing over the past months?

§ Mr. Swayne
My hon. Friend is exactly right. It would be a monumental waste of the Parliament's time to go down that route. The hon. Member for Edinburgh, West was quite right to say that it is an outrageous proposal that would bring the Parliament into disrepute. However, if the Parliament were debating populist measures, I am not sure whether public opinion would move in exactly that way. I agree entirely that the waste or exploitation of the Parliament's time in that way should be ruled out by the procedures at the outset, in accordance with the terms of the legislation of vires and ultra vires that we have spent days and weeks discussing.

§ Mr. Syms
We all know that, when private Members' Bills are introduced in the House, public expectations go up. We receive lots of letters as if the measure were about to become law, although as legislators we know that it will not. Is there not a great risk that, if the Scottish Parliament introduces legislation in areas where it does not have competence, that will have the same effect of building up a great deal of public support for something that cannot possibly be achieved?

§ Mr. Swayne
There is certainly that danger. The build-up of public support, far from bringing the Scottish Parliament into disrepute as the hon. Member for Edinburgh, West suggests, will have the effect of bringing this Parliament into disrepute. That is why it is so important to put procedures in place so that the vires is ruled at the start of the procedure and not at the end of it. That is particularly important.
Labour Members have repeatedly drawn attention to the fact that the Scottish Parliament will discuss what it will discuss. That is true in debate, but it must not be allowed to pertain to legislation being put through the Scottish Parliament. If it did, it would make utter nonsense of the schedules that we have considered and all our debates on what should be devolved and what should not.

§ Mrs. Laing
I entirely agree with my hon. Friend the Member for New Forest, West (Mr. Swayne) who has most eloquently expressed the crux of the argument. If the Government's motion to disagree with the Lords amendment is carried, it will make nonsense of all the hours that we have spent discussing schedule 5 of the Bill and the Bill itself. It will have been a complete waste of 425 time discussing which matters should be devolved to the Scottish Parliament and which should be retained by Westminster.
The hon. Member for Banff and Buchan (Mr. Salmond) argued very strongly—I will allow him to correct me if I am wrong—that the Scottish Parliament should have the power to vary the matters over which it has competence. If it is up to the Parliament to decide which Bills are introduced, if it is up to the politicians to decide on the popular matter for discussion of the day, and if it is up to the MSPs at the time to decide whether that matter can be discussed or legislated on, he is effectively saying that schedule 5 is incompetent, that it might as well not exist and that we might as well not have spent many days discussing it.

§ Mr. Gorrie
May I draw the hon. Lady's attention to the rest of clause 31 which it is not proposed to remove? It sets out all the blocks affecting any legislation going through the Scottish Parliament. Her remarks amount to hyperbole that bears no relation whatever to the facts.

§ Mrs. Laing
The hon. Gentleman is correct in referring me to clause 31, but I disagree with his interpretation. Under clause 31 all that would happen is that, after a Bill had completed all its stages in the Scottish Parliament, a decision could then be taken that the Parliament did not have competence over that subject and therefore could not pass the Bill. That is precisely what will make a nonsense of the proceedings of the Scottish Parliament.

§ Mr. Salmond
If the hon. Lady is so concerned that she has wasted her time on schedule 5, why did she and her party not object to the clause that says that, notwithstanding everything else, the Westminster Parliament can always overrule the Scottish Parliament whether or not it has legislative competence? Why did she not concern herself with that clause?

§ Mrs. Laing
Would it surprise the hon. Gentleman to know that I consider that the most important clause in the Bill? It is vital that that clause be observed because the Scottish Parliament will derive its power from Westminster, just as it derives its power from the Bill which will be passed by this Parliament.

§ Mr. Salmond
The hon. Lady is saying that, notwithstanding her previous argument about the importance of schedule 5 and working out where she thinks the Scottish Parliament should have legislative competence, she would reserve her right to interfere with the Parliament even in matters where it had legislative competence. Is that her position?

§ Mrs. Laing
The hon. Gentleman is making my argument for me extremely well. The crux of the argument is that the matter that we are discussing will serve only to drive a wedge between the Scottish Parliament and the Westminster Parliament. I appreciate—so must the Minister—that the hon. Gentleman wants to do exactly that. It is the hon. Gentleman's political agenda because he wants a separate Scotland. If the legislation that we are discussing results in the Westminster Parliament and the Scottish 426 Parliament coming head to head in an irresolvable argument about the competencies of the two Parliaments, it will be more likely that the people of Scotland will become disenchanted with devolution.

§ Mr. Salmond
The hon. Lady has put her finger on the fact that I support an independent Scotland. However, she is having difficulty in understanding that I do not deceive myself into believing that a procedural mechanism one way or the other will be the subject on which independence is either successful or unsuccessful. It is about politics, not procedure. Does the hon. Lady give me that?

§ Mrs. Laing
No indeed, I do not. I see exactly what the hon. Gentleman is saying about procedure. Of course it is not the procedure but the way in which it is used. The hon. Member for Edinburgh, West (Mr. Gorrie) spoke about MSPs being stupid. I think that was the word he used—[Interruption.] I do not wish to misquote the hon. Gentleman but he is not correcting me. He was suggesting that some people may not understand procedure.
If I may pay a compliment to the hon. Member for Banff and Buchan—I have already become unpopular by paying a compliment to the hon. Member for Falkirk, West (Mr. Canavan), and I like to keep these things balanced—he is an extremely competent political operator and he knows exactly how he will be able to use the very procedure that we are now discussing. Of course democracy is not protected by mere rules. It depends on how people use the rules. The hon. Gentleman knows how to use the rules to his political advantage and I do not want him to gain that political advantage.

§ Mr. Hayes
Is not the compliment that my hon. Friend has paid to the hon. Member for Banff and Buchan (Mr. Salmond) tempered by the fact that his problem with the ultimate sovereignty of this Parliament is that he had hoped that the Scottish Parliament would be a federal Parliament—and probably still hopes that? It will be a devolved Parliament, and in a unitary constitution—

Mr. Deputy Speaker
Order. Please sit down when I am standing. We are going wide of the amendment and the intervention is also far too long.

§ Mrs. Laing
I appreciate the basic point that my hon. Friend was making. The important fact about the Scottish Parliament is that it will derive its power from this Parliament and the Bill that is being passed through this Parliament.

§ Mr. Evans
Does my hon. Friend agree that we have already had a fine example this evening of action that the Scottish Parliament may take that would be out of its competence—the issue of the number of Members of the Scottish Parliament? The Scottish Parliament might introduce a Bill to ensure that there were more MSPs than had been allowed by the Bill, with representation equal to Westminster's. Under the Government's proposal, the Scottish Parliament would be able to debate the issue and only at the end of the process, after the vote had been taken, would the process be stopped. That is a great danger to the proper working of the Scottish Parliament.

§ Mrs. Laing
My hon. Friend is right. It would also be a great waste of time for the Scottish Parliament. I am 427 concerned about how Scottish taxpayers must feel when they hear about what the Scottish Parliament will do, how many members there will be and how the number will be changed —starting with 129 but then going down to just over 100 because we do not really need 129. Scottish taxpayers must be worried about what the Scottish Parliament will do and what the many highly paid civil servants will do.

Mr. Deputy Speaker
Order. Let us not worry about what the Parliament is going to do. We have specific amendments before us.

§ Mrs. Laing
I shall adhere strictly to the amendments. If we agree with the Government this evening, we might as well not have had schedule 5. All the rules that have been laid down at great length by the House and our parliamentary process will have been for nothing. The hon. Member for Banff and Buchan and his colleagues will be only too happy to continue to drive the wedge that he has spoken of this evening between the Scottish Parliament and the Westminster Parliament. That will doubtless be the effect if the hon. Gentleman has his way. I shall not embarrass him by repeating my compliment that he is a clever political operator.

§ Mr. Syms
My hon. Friend is making a persuasive case. The hon. Member for Banff and Buchan (Mr. Salmond) talked about procedural mechanisms. Are not constitutional arguments all about procedural mechanisms?

§ Mrs. Laing
I agree that procedural mechanisms are an important part of the political process. If we do not have well laid out procedural mechanisms—this is what the amendment is about—it will not be clear what is intra vires and what is ultra vires. That is one of the most important rules of constitutional law. If we do not have clear rules, there will be constant squabbles about what the Parliament can do. Only lawyers will benefit from that situation, because they will earn large fees for deciding the arguments. I declare an interest because I am a lawyer and I have no objection to lawyers earning large fees, but taxpayers should be protected from that.

§ Mr. Bercow
My hon. Friend is developing a powerful case. I am not a lawyer—I say that as a matter of pride. I recognise that my hon. Friend cannot penetrate the mindset of Ministers, but does she think that the Government can have any credible reason for wanting to create a situation that would allow the Scottish National party to whip up anti-English hysteria?

§ Mrs. Laing
rose—

Mr. Deputy Speaker
Order. The comments of the hon. Member for Buckingham (Mr. Bercow) have nothing to do with the amendments, so the hon. Lady should not respond. I remind her that there is such a thing 1as repetition—I shall not go as far as to say tedious repetition. She has made her case on the amendments. To keep repeating her arguments would not be fair to the House.

§ Mrs. Laing
I conclude from your advice, Mr. Deputy Speaker, that I have made my point and I am happy to rest my case.

§ Mr. McLeish
I apologise for the long interventions early on. This has developed into a nearly interesting filibuster. I had hoped from previous debates that the Conservative Opposition were recovering and rehabilitating themselves in the aftermath of defeat in May 1997, but they have gone back to their bad old ways and their tired old arguments tonight. I had high hopes for the hon. Member for Epping Forest (Mrs. Laing) after her Front-Bench appearance in Committee. The Conservatives cannot distinguish between hysteria surrounding the political interpretation of what is happening in Scotland and the cool, measured view required to look at the legislative process and the issue of competency.
The role of the Presiding Officer—the Speaker of the Scottish Parliament—is at issue. The suggestion of the other place would give the Presiding Officer unchallengeable power to decide on questions of competence. That would escalate his involvement, giving him a role described by the hon. Member for Banff and Buchan (Mr. Salmond) as essentially political. That is not the role of Madam Speaker and her deputies in this House and it should not be the role of the Presiding Officer and the deputies in the Holyrood Parliament. We have tabled considered amendments that would remove the potential for conflict in Holyrood. The Presiding Officer would be allowed to state a case about vires, but the case would be part of a structured set of checks and balances on legislative competence.
I hope that the Conservatives will take cognisance of what is happening in Scotland. There is no prospect of the scenario that they have come up with being part of the Holyrood scene.

§ Mr. Dalyell
Could we be clear whether there has been recruitment of Clerks for the Presiding Officer? I gather that Mr. David Millar has been recruited. What is the position of the expert help that any Presiding Officer would need? That ought to be in place before the elections.

§ Mr. McLeish
The work of the expert panel on procedure is part of the consultative steering group. A lot of detailed work has been done on the points that have been made. An initial appointment has been made. I take my hon. Friend's point seriously. We want to ensure that all the relevant advice will be available after 6 May next year, when the Parliament starts. I assure my hon. Friend that that will be in place; it is a major part of our current considerations.
I want the Conservative party cooly to examine what is proposed for Holyrood. First, the Bill is about reserved competencies for Westminster and devolved competencies, so already a decision has been made on what we should be making laws on in Scotland and what should be kept in this place. Secondly, within the consultative steering group—which contains a Conservative representative—we have agreed to have pre-legislative scrutiny, which does not exist in Westminster.
I challenge the Opposition to consider a situation where all that is incompetent because it is ultra vires. Let us return to the real world—just for a small amount of time, because concentration can be difficult. Let us imagine that we have the devolved responsibilities, which we take 429 seriously, and pre-legislative scrutiny before a Bill even arrives in Holyrood. We will then have a situation where a Minister with responsibility for education or for local government comes before the House and says that the proposed legislation is within the competence of the Parliament. The Presiding Officer will then make a statement at Holyrood on the vires of the Bill. At every step, is it conceivable that the Parliament—subject to the scrutiny of the press and the public—can be breaking laws day in, day out in terms of legislative competence? That is an absurd proposition from the Conservatives.
After the Presiding Officer's statement, the Parliament can decide to proceed in the knowledge of the Presiding Officer's views. However, the Bill could then be amended and the offending part that was not within vires could be taken out. If it remains ultra vires, the Law Officers can refer it to the Judicial Committee of the Privy Council. The Bill cannot go for Royal Assent if it is ultra vires in the view of the JCPC. There can be no more structured set of procedures in any Parliament in the world. It is sensible because it will he a serious Parliament with enormous law-making potential, and it will be responsible for £15 billion.
The Opposition must confront reality and start to trust the people. Are we suggesting that the Members of the Scottish Parliament elected by the Scottish people on 6 May next cannot be trusted to make laws that are within the competence of the Parliament? That is the absurdity of the Opposition's approach tonight. They are going back to their old ways and, frankly, it does their perception in Scotland no good at all.

§ Dr. Fox
The Minister says that we are proposing an absurd set of conditions. It is, truly, an absurd set of conditions if we are dealing with rational politicians who want to make the Parliament work. However, if we are dealing with a Parliament in which the majority of politicians do not want it to work because they have an alternative political agenda which is quite different from that of the mainstream Unionist parties represented in this House, that is a problem.
In the first draft of the Bill, we had a double-lock—a lock right at the outset where there was, through the Presiding Officer, the ability to stop a Bill. However, that does not exist now—either through the Presiding Officer or anyone else. Why have the Government taken that out of the equation?

§ Mr. McLeish
To coin a phrase, "Game, set and match". The hon. Gentleman has shown the Opposition's fear of what the newly elected group of 129 Members of the Scottish Parliament will do in the new Parliament. I have painstakingly gone through the procedures to provide the checks. The Opposition are simply not listening because they do not want to listen. They have put forward a set of absurdities.

§ Mr. Stephen Day (Cheadle)
The Minister said that the Opposition did not believe that the Scottish Parliament—or the individual Members, once elected—would be competent to carry out its duties on behalf of the people of Scotland. I do not believe that that is in any way the case. Surely the question is whether the Government were competent in their proposals for the powers of the 430 Parliament, because when the matter was put before the Scottish people, no details as to what the powers and the definition of the Parliament would be were given. In other words, any question of lack of competence rests on the shoulders of the Government of whom the Minister is a part.

§ Mr. McLeish
We have had 185 hours of debate in this Chamber and the other place on the Bill. Before that, a number of us became familiar with the White Paper, which was well discussed in Scotland and set out the powers and competencies of the Scottish Parliament. The Scottish people signed up for that in a referendum with two ballots. The hon. Gentleman's proposition is not tenable—he is attempting to find a gold nugget in a complex area.
Tonight, we have set out genuinely and honestly what is happening with the Bill. There is a thorough set of procedures which the Opposition cannot distort and undermine by confusing politics with practicalities. I do not believe that their case stands up and I believe that what we have is robust and will be taken seriously by Scots in the Parliament. I believe that we will have good law making in Holyrood.