THE SCOTTISH EXECUTIVE

HC Deb 11 November 1998 vol 319 cc434-40

Lords amendment: No. 53, in page 19, line 5, at end insert—

("(3) A person who holds a Ministerial office may not be appointed a member of the Scottish Executive; and if a member of the Scottish Executive is appointed to a Ministerial office he shall cease to hold office as a member of the Scottish Executive.

(4) In subsection (3), references to a member of the Scottish Executive include a junior Scottish Minister and "Ministerial office" has the same meaning as in section 2 of the House of Commons Disqualification Act 1975.")

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. 54 to 62, 64 to 87, 123, 124, 31, 147 to 151, 170 to 173, 288, 293, 297, and 298 and a motion to disagree.

Mr. McLeish

This large group of technical amendments deals with a wide range of matters, including prohibition of dual mandates, the resignation of the Lord Advocate, the validity of Acts of Scottish Ministers, consultation requirements under clause 51, the sharing of powers under clause 52, interaction with the Human Rights Act 1998, the transfer of property, agency arrangements, the definition of "the Crown" and official secrets. I urge the House to accept the amendments; we will, of course, oppose any attempt to disagree with amendment No. 298.

I understand that Opposition Members are interested in amendment No. 53, which prevents members of the Scottish Executive—which, for the purposes of the clause, includes junior Scottish Ministers—from holding office in the UK Government. The amendment provides that a person holding ministerial office, as defined in section 2 of the House of Commons Disqualification Act 1975 may not be appointed as a member of the Scottish Executive and that, if a member of the Scottish Executive is appointed to ministerial office, he shall cease to hold office as a member of the Scottish Executive. It also makes it clear that the term "member of the Scottish Executive" in this context includes a junior Scottish Minister.

I also understand that Opposition Members are concerned about amendment No. 298, which provides that members of the Scottish Executive and junior Scottish Ministers are Crown servants for the purposes of the Official Secrets Act 1989. It is important that the House appreciates what that does and does not mean. The Official Secrets Act does not always get a good press, but it plays a useful role in enabling the exchange of information within Government, which is why we tabled the amendment.

Amendment No. 298 will ensure that Scottish Ministers are put in exactly the same position as Ministers in the UK Government. It will also put them in the same position as their staff, who will of course be civil servants and, as such, Crown servants for the purposes of the 1989 Act without the need for any amendment. That is all that the proposal is about—it will mean that Scottish Ministers will be able to receive and, if necessary, disclose information covered by the 1989 Act while also being subject to the offences created by the Act. The Government consider that the amendment is necessary so that Scottish Ministers can carry out their duties to the full. It will mean that there is no anomaly in the position of Ministers as against their civil servants in respect of access to information. We would rightly be criticised if we bequeathed that anomaly to our successors. I hope that hon. Members will recognise that and support the amendment.

7.15 pm

Mr. Evans

As the Minister said, the amendments are wide ranging and largely technical, but my primary concern is amendment No. 53, which deals with the dual mandate. We have been asking for such a measure for some time and we believe that the amendment is straightforward and sensible. It recognises that, if devolution is to mean anything, there must be a clear break between those who hold office at Westminster and those who are part of the Executive in the Scottish Parliament. Devolution will mean nothing if the Scottish Executive regularly have to sing to the tune of the Westminster Cabinet.

We know that the Government are still suffering from their control-freak tendencies in every other matter—we saw examples of it only this weekend—but at least they have recognised the stupidity of allowing a two-jobbing politician to have a face, let alone feet, in both camps. That politician's voice would be, by its very nature, the voice of the Westminster Government. A Minister who held positions at Westminster and in the Scottish Executive would necessarily be bound by collective Cabinet responsibility and by what Downing street said.

Will the Minister say whether he believes that a politician can serve two masters? If someone cannot be a Minister both in Scotland and at Westminster, why do the Government believe that someone can be part of the Executive in Wales but also part of the United Kingdom Government? Indeed, someone can be both First Secretary in Wales and Secretary of State for Wales. If the measure in the amendment is right for Scotland, why is it not right for Wales? If a person can serve two masters in Wales, why have the Government tabled this amendment to the Scotland Bill? The people of Wales and of Scotland will be interested to hear the answer to that question.

Mr. Richard Shepherd (Aldridge-Brownhills)

I speak to the motion, which I tabled with my hon. Friend the Member for Rochford and Southend, East (Sir T. Taylor), to disagree with Lords amendment No. 298. The Minister has claimed that the Bill is carefully thought through and balanced and that it was constructed as a whole. It was always intended that the Government of Wales Act 1998 should impose on Assembly Members the Official Secrets Act 1989. The measure was wide ranging and subject to some discussion. The House agreed to an amendment of which I did not approve.

As regards this Bill, however, amendment No. 298 was parachuted into the House of Lords. The measure did not appear in statements to the Scottish people and was not discussed by the Scottish Constitutional Convention or—as it was not originally in the Bill—by the House of Commons. Moreover, there was almost no discussion in the House of Lords of the propositions underlying such an important concept. Indeed, those who spoke welcomed or even acclaimed the measure. We all too often accept the conventional way of doing business.

For certain classes of information, the Official Secrets Act makes what we regard as matters of confidentiality the subject of a criminal offence in respect of Government servants and Ministers of the Crown. Other than the Minister's explanation today, no one has said why that is necessary. We are not suggesting that the security of the state— of our island Government or even of Scotland-is at issue, because that is a reserved matter for this House. No one has advanced any argument why it is necessary to impose the criminal law on Members of the Scottish Parliament, as a precondition of election.

I want to test the proposition, because it seems strangely contradictory to the thrust of the Government's intentions on freedom of information, of which I am all in favour. We hear talk of the new politics of openness and the new dispensation in Scotland, yet the Official Secrets Act is being imposed without reasoned thought. Why is it necessary? Is it because a Minister may be too candid with the Parliament or because the Scottish people are not sufficiently grown up to participate in the debates that form public policy on non-reserved matters?

To take a very sensitive issue, if someone were to come into possession of a piece of information about Dounreay that could touch deeply, or even lethally, the lives of UK citizens resident in Scotland, disclosure would be a criminal offence. How can we have a fully informed, proper public debate without the availability of, and access to, information?

The Government agree with me, to the extent that they published one of the most extraordinary White Papers that the country has ever seen: "Your Right to Know". The Prime Minister, no less, wrote a foreword saying how important it was. The original draft of the Bill was in that spirit, inasmuch as it did not extend the use of the Official Secrets Act by what I will argue is the very wicked device of including it here rather than amending the primary legislation.

Why was it necessary to introduce a provision that has at no stage of the process been drawn to the attention of the Scottish people, in the name of whom the Government claim authority for the legislation?

We have not heard any reasoned arguments. The Minister has merely said that matters of confidentiality require a criminal offence, but that is not borne out when we consider the scope, authority and ability of the Scottish Parliament to make law on matters that do not touch on the security of the state. We may prevent proper consideration, with a full, mature adult population participating in public policy. How can we make informed judgments without a flow of information?

I believe our system of government—our constitution and the ways of its workings—to be profoundly good, but one of its sins is that it has for most of this century been dependent on the most extraordinary tool of repression of freedom of discussion: our legacy of section 2 of the Official Secrets Acts 1911 and 1920. That is what is at issue.

The new politics that the Labour party espoused so bravely on day one seems to have withered on the vine, as we still have no freedom of information Bill, despite many promises. I thought that, in that open climate, Scotland would be relieved of something that inhibits informed public debate. It is often said that Governments do not mind freedom of expression, because by and large our prejudices are simply not informed, but that they fear equality of information, because that allows people to argue on an equal basis about the right course of action.

I believe that the measure is wholly inappropriate, as does my hon. Friend the Member for Rochford and Southend, East. Unfortunately, he could not be here today, but he asked me, as we are both true-born Scots, to express that view on his behalf.

Mr. McLeish

I acknowledge the expertise and interest of the hon. Member for Aldridge-Brownhills (Mr. Shepherd) in these matters. My arguments are not so sophisticated. We want consistency, so that our access to the Official Secrets Act is consistent with that of Westminster Ministers. I believe that that is right. That is my core point, although I acknowledge that there is a wider argument about why others might construe that as stifling proper dialogue with the public and as preventing what I believe that the hon. Gentleman described as a mature debate in Government.

As the hon. Gentleman said, we are a Government who believe in freedom of information, even if we have not got as far as he would like. I hope that the new Scottish Parliament will enter into that spirit and, more important, participate in the development of freedom of information.

Mr. John Home Robertson (East Lothian)

Both my hon. Friend the Minister and I have an interest in these matters, because we both hope to be elected to the Scottish Parliament. I am worried by the point that the hon. Member for Aldridge-Brownhills (Mr. Shepherd) made: he painted a scenario in which, if I were to table a question to my hon. Friend in the Scottish Parliament, he could be prosecuted for giving me an answer. That is a terrifying thought. It would be useful if my hon. Friend could clarify the point, because I am sure that that is not the intention.

Mr. McLeish

In my judgment, the system works for the Westminster Parliament. We want to take that set of conditions and apply it at Holyrood. Because of a wider range of issues with which he is concerned, the hon. Member for Aldridge-Brownhills does not think that we should do that. I have argued simply from the premise of consistency.

Scottish Ministers may become aware of matters covered by the Official Secrets Act. Making such Ministers Crown servants gives them the protection of section 7 of that Act, which can be invoked if the disclosure is made in accordance with their official duties. I believe that our proposal is simple and straightforward, providing consistency and good government and giving us the necessary basis for debate on some sensitive issues.

Dr. Norman A. Godman (Greenock and Inverclyde)

I have great respect for the hon. Member for Aldridge-Brownhills (Mr. Shepherd) and his expertise in these matters, but I think that he is being too alarmist. Will my hon. Friend the Minister confirm that Back-Bench Committees in the Edinburgh Parliament will have the right of access to material when they cross-examine Ministers on policy and other matters?

Mr. McLeish

In the spirit of my original explanation, that will be the case. We are talking about a Parliament that will make real laws and scrutinise the Executive on real live issues. We should not create a pretence that the Scottish Parliament will be any less stringent or intense in scrutiny than we are at Westminster.

We should keep matters in perspective. There is nothing terribly sinister in what we are attempting to do at Holyrood in comparison with what happens at Westminster. My speaking notes could fill volumes of Hansard, but I would rather provide the hon. Member for Aldridge-Brownhills with a detailed written response in which I can set out the full background. I have tried to cover the substance of his point this evening.

Dr. Fox

I am not sure whether the Minister intends to return to amendment No. 53. In case he does not, I should not let the moment pass. He has told us about the change that is being made, but why did the Government choose to include in the Bill the provision that a Minister of the Crown cannot serve in the Scottish Executive?

7.30 pm

Mr. McLeish

I was going to return to that point, but I wanted first briefly to respond to the hon. Member for Aldridge-Brownhills.

The hon. Member for Woodspring (Dr. Fox) has raised what might be called the Welsh factor, although this is a Scottish debate. There is no mystery in why we have acted as we have. We are dealing with the devolution of primary legislation to Scotland, and we simply cannot have Ministers who are both members of the Scottish Executive and Ministers of the Crown at Westminster. The Welsh Assembly will be responsible not for primary legislation, but for subordinate legislation, and that distinction is important. Once the Holyrood Parliament is set up, the Scottish Executive and Members of the Scottish Parliament will get on immediately with their business. In Wales, I expect there to be a considerable amount of liaison during the first few months of the Assembly. I do not want to stray on to Welsh business, but it may be that Ministers at Westminster may also populate the Welsh Assembly in some capacity.

Mr. Dalyell

The Minister says that the Scottish Parliament must get on quickly with its business. If there are to be Committees, they must be serviced, and they must be serviced by skilled people. What arrangements have been made to provide skilled assistance? The skills required are somewhat rare, as the activity is a specialist one. Has the provision been thought through?

Mr. McLeish

There has been an enormous amount of discussion about that point. We are setting up a Parliament and specialist Committees, which will, for the first time, combine legislative and scrutinising functions, and we know the level of expertise required. Work is being done with the consultative steering group, and we are recruiting staff. I shall write to my hon. Friend to detail what has been done to tackle his specific point.

Mr. Evans

I have no doubt that the Scottish Parliament will want to get on with business, as will the Welsh Assembly. The amendment is right, and we wanted it all along. If devolution is to mean anything, it is inconceivable that a Minister in the Scottish Parliament could also be a Minister at Westminster. Collective responsibility means that that could not work, as devolution would not function properly. Does the Minister, for the sake of consistency, accept the principle of amendment No. 53, which is that to have a two-jobbing Minister at Westminster and at either the Scottish Parliament or the Welsh Assembly simply would not work?

Mr. McLeish

The final stages of the Scotland Bill are no forum for discussion of the Welsh Assembly. We are responding to the situation in Scotland. The amendment is straightforward, and it is important. It would not be wise for me to comment on other Bills, or on an Assembly with which I have no involvement.

Dr. Godman

My question is prompted by the question of my hon. Friend the Member for Linlithgow Mr. Dalyell). Specialist advisers are important, and provision must be addressed. As one who will not sit in the Scottish Parliament, may I say that many new Members will have none of the experience of cross-examining Ministers that most Members at Westminster gain through the Select Committee system? I hope that some attention will be given to the guidance of new MSPs.

Mr. McLeish

The new Parliament will contain a smattering of experience, but my hon. Friend has a point. We will embark on training relating to the nuts and bolts of Parliament and the whys and wherefores of Committee work. The consultative steering group has set up expert panels on technology, procedures and the media, and some of the most distinguished people in the country serve on those panels. We have not simply waited for the Parliament to be established. We have made a serious attempt to build up to the point at which Members who are elected can get quickly on to business and have the expertise at their disposal to do so properly and effectively.

Mr. Shepherd

I want to clarify one point. To whom will a civil servant in Scotland owe his or her first duty of allegiance? Will it be to the Secretary of State, who sits in the Westminster Parliament?

Mr. McLeish

The civil service is a unified service, but the first call on civil servants in Scotland will be from the First Minister.

Mr. Shepherd

indicated dissent.

Mr. McLeish

If I misunderstood the hon. Gentleman's question, I apologise.

Mr. Shepherd

With whom does a civil servant's first duty lie? The Minister says that the first duty in Scotland is to the Scottish Minister. However, Crown civil servants within a unified service clearly owe a duty to the Crown at present, through the Secretary of State for Scotland, in the United Kingdom Parliament. Who will be their master?

Mr. McLeish

Clearly, the civil service will remain a unified service, but civil servants working in Scotland will work through the First Minister to the Crown. They will swear allegiance in the same way as Ministers at Westminster. The process is not complex.

Lords amendment agreed to.

Lords amendments Nos. 54 to 87 agreed to.