Lords Sitting of 12 April 1978

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwell.
The Lord Faringdon—Sat first in Parliament after the death of his kinsman.

WILLIAM PRESS LIMITED: TAX INQUIRIES
Lord HOUGHTON of SOWERBY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the Commissioners of Inland Revenue, or the police, made any statement to the Press before or after the entry of Inland Revenue officials into the premises of William Press Limited, under a warrant to obtain documents issued under Schedule 6 to the Finance Act 1976 and, if so, what was the nature of such statement or statements and on what authority the disclosure of matters relating to the tax affairs of any person or persons was made.
The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Birk): My Lords, neither the Inland Revenue nor the Metropolitan Police had any contact with the Press before the entry into the company's premises. In response to Press inquiries after the entry the Revenue confirmed that entry had been made into the company's premises under warrants issued under the Finance Act 1976 and the Metropolitan Police confirmed that Fraud Squad officers had supported the Inland Revenue officials in the execution of these warrants. There has been no disclosure to the Press of the tax affairs of the company or of any person connected with it.
Lord HOUGHTON of SOWERBY: My Lords, has my noble friend looked at the newspapers for Tuesday, 7th March? If so, she would have discovered a great deal of detailed information about the nature of this raid, the number of persons employed in it, where it took place and a great deal else about it. Where did that information come from and under what authority was it disclosed? Does my noble friend understand that this case raises issues of considerable importance regarding the liberty of the subject? Is she aware that these powers are exercised under authority of Parliament given as recently as the summer of 1976? Does she understand how important it is to have rules as to how these exercises are to be undertaken? Otherwise, does she understand—
Several noble Lords: Order! Speech!
Lord HOUGHTON of SOWERBY: My Lords, otherwise does she understand that people in this position may suffer grave harm from the length of time taken to settle the matter?
Baroness BIRK: My Lords, I do not believe that my noble friend has a monopoly regarding concern for the civil liberty of the subject. It is true that the entry was carried out on 6th March at five o'clock in the morning. The reports to which my noble friend has referred appeared in the evening newspapers. Therefore, there was plenty of time for the information to have been obtained or observed by the newspapers without anything being given to the newspapers in advance. At the time when people were going in and out of the premises an Inland Revenue official was asked for information and he said, "No comment". It is also true that at the Essex Street, Strand, head offices of the firm a detective chief superintendent of Scotland Yard's Fraud Squad when asked about the matter said:
"I am here with a detective constable assisting some 40 or so Inland Revenue officers who arc searching the premises to establish whether or not any evidence exists of any tax evasion."
There was nothing incorrect about that. It took place during the process of the entry. I have also ascertained that both the Inland Revenue and the police carried out their own inquiries into this matter to make absolutely sure that there

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had not been any misconduct on the part of a police officer or an Inland Revenue official, and they were quite satisfied that, in fact, there had not.
Lord HARMAR-NICHOLLS: My Lords, is the noble Baroness aware that those of us who objected to this power being given under a Finance Bill are very disturbed indeed that the system is being used in order to make statements or allow statements to be reported in the Press which are bound to prejudice any defence that anyone involved may have to put forward? This is an extension of the powers that were given under the Finance Bill and it ought to be looked at again.
Baroness BIRK: My Lords, I am sorry, but the noble Lord, Lord Harmar-Nicholls, can argue—and it was argued during the passage of the Bill in the Commons and it was also raised in this House—about whether one agrees or not with this particular Schedule in the Finance Act, but that is not the subject of the Question today. The subject of the Question is whether any improper information was given to the Press. It is incorrect to say that anything improper was given to the Press. What I have said in answer to the Question of my noble friend Lord Houghton of Sowerby answers that point. It does not in any way take the powers any further. A great number of officials were involved; the offices were very near Fleet Street and it was natural that questions would be asked during the process. The answers that were given were full of no information.
Lord HOUGHTON of SOWERBY: My Lords, is my noble friend aware that, in view of the unsatisfactory nature of her reply, I propose to raise the matter at a suitable opportunity in an Unstarred Question?

SALMON REPORTS ON TRIBUNALS OF INQUIRY
2.40 p.m.
Lord GRIDLEY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action they are taking on the Salmon Reports on Tribunals of Inquiry.
Lord WELLS-PESTELL: My Lords, the Government accept, with certain modifications, the recommendations both of the Royal Commission on Tribunals of Inquiry, of which the noble and learned Lord, Lord Salmon, was chairman, and of the Inter-Departmental Committee which he also chaired and which examined the law of contempt as it affects tribunals of inquiry.
Most of the Royal Commission's principal recommendations can be effectively implemented without legislation. When an opportunity for legislation occurs, the Government will wish to take account of the experience of the application of the Salmon Commission's principles which the tribunal on the Crown Agents will afford.
Lord GRIDLEY: My Lords, I thank the noble Lord for that Answer and for giving a statement which I. as a layman, find rather difficult to follow. I am concerned about the length of time which it appears has elapsed in the deliberations of this Committee. Is it not a fact that the Royal Commission on Tribunals of Inquiry made recommendations affecting the protection of witnesses as far back as 1966? This was followed in 1969 by legislation recommended by a departmental committee in order to cover speeches made before tribunals and evidence given by witnesses. That was followed by a Conservative White Paper in 1973 accepting many of the recommendations of the Salmon Report. Has not rather a long time elapsed before effect is given to the important issues raised by distinguished people who sat on these Committees?
Lord WELLS-PESTELL: My Lords, I take the noble Lord's point about the interval of time. I do not think that I can make any useful comment on that, although I think I am right in saying that no tribunal has been set up since the Royal Commission reported. It is perfectly true that in the White Paper there are seven recommendations, all of which require legislation, and one of them is the one to

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which the noble Lord referred. I pointed out that, from an administrative point of view, at least five of them can be implemented without legislation, but the Government accept that eventually there will have to be legislation for the seven recommendations.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, why "eventually"? Is it not the case that time after time we set up these judicial tribunals? Is it not the case that every time one reports there are complaints about the procedure? Is it not the case that every time one reports we are told that one day we shall have legislation, and we never get it?
Lord WELLS-PESTELL: My Lords, the noble and learned Lord, Lord Hailsham of Saint Marylebone, as always is perfectly right. I have many times found myself at the Dispatch Box having to say much the same thing as he has suggested I have said today. However, it is the Government's intention to do so, but I do not feel that, on behalf of the Government, I could promise that there will be legislation this Session.
Lord HOUGHTON of SOWERBY: My Lords, has my noble friend any news of the other Salmon report on which the Government have taken no action?
Lord WELLS-PESTELL: My Lords, I think that I must confine myself to the Question before your Lordships' House.
Lord MORRIS: My Lords, are Her Majesty's Government aware that, when the Government of the day invited my noble and learned kinsman, Lord Salmon, to chair the Royal Commission in 1966—at a time when, even then, the problems were most pressing—they received the report only some eight months after the initial meeting? Furthermore, do Her Majesty's Government not feel that the disheartening indifference to the recommendations by successive Governments can lead only to the same advice being given to those asked to chair Royal Commissions as that given by Mr. Punch to those contemplating marriage?
Lord WELLS-PESTELL: My Lords, perhaps I could repeat that the Royal Commission established and set out six cardinal principles for the conduct of
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future tribunals. We are in the process of a tribunal and, on 10th April, the chairman made it clear that the tribunal intends to use as guidelines the six cardinal principles set out in the Royal Commission's report, wherever it is practicable to do so. I should have thought that, in the absence of legislation, the very fact that the chairman had made that statement, really is carrying into effect at least a major part of the report of the noble and learned Lord's Commission.
Baroness WOOTTON of ABINGER: My Lords, I was greatly interested to hear the intervention by the noble and learned Lord, Lord Hailsham of Saint Marylebone, complaining that this Government constantly promise legislation and do not deliver it. Would not my noble friend agree that the common complaint from the opposite Benches is that we have too much legislation?
Lord WELLS-PESTELL: My Lords, perhaps I ought to put the record straight for my own sake by saying that when I told the noble and learned Lord that I entirely agreed with him, not only did that remark apply to this Government but certainly also to past Governments.

OPERATING THEATRES
2.50 p.m.
Baroness EMMET of AMBERLEY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many operating theatres have been closed, and how many new ones provided, in the last three years.
Lord WELLS-PESTELL: My Lords, as I informed the noble Baroness when I replied to her related Question on 2nd March, information on the number of operating theatres which have been closed is not available centrally. Nor is information on the number of new theatres provided, but I can give an assurance that operating theatres are not permanently closed before provision has been made for the surgery which would have been carried out in them to be performed elsewhere, usually in more up-to-date theatres.
Baroness EMMET of AMBERLEY: My Lords, I thank the Minister for that reply, and also for responding so quickly to letters that I have exchanged with him. May I ask him whether he is happy about the priority which is being given in the money available between the housing of the administrative staff and the medical side? Is he aware that in a county like mine, Sussex, we have a great many retired people and that our waiting lists hear very heavily upon them because of their age? We have a waiting list of three years in one town. I am glad that the noble Lord said that new operating theatres were available before old ones were closed. That is not our experience in West Sussex. An operating theatre closed there and a new one was not paid for.
Lord WELLS-PESTELL: My Lords, the noble Baroness will recall that when I wrote to her I pointed out that the suite of four theatres to which she made reference was closed from 23rd January to 20th February this year for a thorough overhaul. This has been done and they are now in use. Meanwhile, the two operating theatres in the accident and emergency department were in fact used during that period. We have no evidence at all that this resulted in any delay. With regard to how money is spent, I can only say that this is the responsibility —as the noble Baroness knows—of the Regional Health Authority, to whom my Department makes an allocation to be spent according to their priorities for the area. I think it is a matter for them and not for my Department.
Lord MURRAY of GRAVESEND: My Lords, notwithstanding my noble friend's reply to that, may I ask him whether he will take an early opportunity to congratulate the Chancellor of the Exchequer on an excellent Budget yesterday, and also to congratulate him on the provision of a great number of kidney machines?
Lord WELLS-PESTELL: My Lords, I am delighted to do so. If this matter was raised, I would have made a brief remark about it.
Lord SANDYS: My Lords, arising out of the noble Lord's previous reply in
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regard to Regional Health Authorities, can the Government tell us whether the £50 million allocated for additional health facilities will be allocated for the purpose of administration or for part of the Health Service, such as operating theatres, to which the Question referred?
Lord WELLS-PESTELL: My Lords, as I understand the position, it includes resources for specific improvements in patient services such as the full opening of newly-completed hospitals and facilities to cut waiting lists. I think that this is what my right honourable friend said in another place yesterday, and I do not think I can go beyond it.
Lord SEGAL: My Lords, can my noble friend give the House an assurance, in view of the length of hospital waiting lists, that the operating theatres which have not been closed are now being fully utilised?
Lord WELLS-PESTELL: My Lords, I would naturally need to have notice of this question. I think we would be very surprised if we found that there were operating theatres not in continuous use. or not in use by the consultants themselves as often as the circumstances permitted.
Lord WINSTANLEY: My Lords, further to that answer, may I ask whether the noble Lord is aware that there are operating theatres in various parts of the country—I understand that Rochdale is a recent example—which are open but which are nevertheless unused because of a shortage of anaesthetists? Is he also aware that this arises in part because anaesthetists, who do not need linguistic ability, can very easily take over posts in the EEC almost overnight at substantially increased earnings?
Lord WELLS-PESTELL: My Lords, I would accept that there is a shortage of anaesthetists. We are aware of this and are endeavouring to do something about it.
Baroness BROOKE of YSTRADFELLTE: My Lords, could the noble Lord tell us how many of the new theatres are built of prefabricated units made by such a firm as Honeywell? These units have been found to be extremely efficient

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quickly put together, and make a great contribution economically to the hospital bill.
Lord WELLS-PESTELL: My Lords, without notice I cannot answer that question. I shall certainly find out and let the noble Baroness know. On the other hand, if she wishes the House to know and cares to put down a Question for Written Answer, I shall deal with it in that way.

ST. LUCIA: INDEPENDENCE TALKS
2.55 p.m.
Lord SEGAL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is now the most likely date for the granting of independence to St. Lucia.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, no date for St. Lucia's independence has yet been agreed. At talks with the St. Lucia Government and Opposition last month it was agreed that the process of consultation would be consolidated and, as part of this, that the Government of St. Lucia would publish for public discussion a draft constitution for an independent St. Lucia.
My honourable friend in another place has stated that, subject to his being satisfied that all these processes had been completed, he would be prepared to call a constitutional conference within the next four months.
Lord SEGAL: My Lords, I thank my noble friend for that reply. Would he not agree that the present situation in St. Lucia, under the wise premiership of Mr. John Compton, would justify giving a high priority to its plea for independence, whereas in the case of other Caribbean Islands some degree of greater delay might be justified?
Lord GORONWY-ROBERTS: My Lords, I would not wish, even in that oblique way, to interfere in the bipartisan
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politics of St. Lucia or any other country, but I have no doubt that both Government and Opposition in St. Lucia have the best interests of that country at heart and we shall co-operate through Section 10(2)—if that proves to be the right process—of the 1967 Act.
Lord SEGAL: My Lords, as the granting of independence to St. Lucia is likely to benefit all sections of the population, including the very poorest, could not the date of independence be advanced somewhat ahead of the programme outlined by my noble friend, so that the period of uncertainty could be minimised?
Lord GORONWY-ROBERTS: My Lords, I do not think that any serious uncertainty accrues from the timetable which is implicit in the substantive Answer I have given. I have said that my honourable friend who deals with these matters is prepared, within the next four months, if certain reasonable conditions of consensus are obtained, to convene a constitutional conference leading to independence.
Lord WALSTON: My Lords, would my noble friend agree that this has been going on for a long time now, and that there is a widespread desire among all types of the population in St. Lucia that it be speedily resolved?
Lord GORONWY-ROBERTS: Yes, my Lords; indeed, there is a general consensus in St. Lucia, and constructive consensus almost always takes a long time to reach.
Lord HAWKE: My Lords, will an independent St. Lucia be dependent on the British taxpayer for subsistence?
Lord GORONWY-ROBERTS: No, my Lords. Independence means what it says. Friendship, of course, leads us to assist newly independent members of the Commonwealth, as I have no doubt an independent St. Lucia, like 35 other newly independent States, has decided to be. The present position is that this Associated State is totally responsible for its internal affairs. At the moment we are only responsible for external affairs and defence, but in independence we would seek ways and means of co-operating further with an independent St. Lucia.

SCOTLAND BILL
2.58 p.m.
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
The LORD CHAIRMAN of COMMITTEES (Lord Aberdare): I regret that owing to printing difficulties it has not been possible to produce a Third Marshalled List of Amendments. Therefore, the documents before the Committee are the Second Marshalled List of Amendments and a typed document headed "Amendments to be moved in Committee (Supplementary to the Second Marshalled List)" which contains those Amendments that have been put down since the Second Marshalled List.
Clause 3 [Dissolution of Assembly]:
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 49:
Page 2, line 38, leave out ("two-thirds") and insert ("three-fifths").
The noble Lord said: Here we are considering, in the context of an Assembly with a fixed term life of four years, what proportion of its total membership should be required to bring about its dissolution. The clause requires a two-thirds majority of all seats, including vacant seats. If I am right, two possibilities are envisaged in the clause as it stands. First, there might be a unanimous resolution in favour of dissolution without a Division at all. That might come about, for example, if the Government, especially if they controlled less than half the seats, decided, with the agreement of all the other Parties, that they could not and should not carry on. Perhaps the noble Lord, Lord Kirkhill, who I think will reply, will tell us whether he foresees any other circumstances in which there could be a unanimous resolution in favour of dissolution.
Secondly, there might be a resolution carried by a majority. The question is, what the minimum majority should be. That resolution might be moved either by the Government, by the Opposition, or by an Opposition Party. It is conceivable that it would suit the Parties in Opposition—that is a factor that has to be borne in mind—to allow a minority Government to carry on without being able to carry out any of the policies on which they had fought the previous Election. Almost certainly in those circumstances the Government would not be able to obtain a two-thirds majority for dissolution. On the other hand, given the two-thirds majority requirement, a Government which controlled only 37 per cent. of the seats, which is quite a possibility, could not be ousted by a resolution for dissolution; nor, in fact, could a Government which controlled 57 per cent. or more of the seats.
The only circumstances in which a dissolution could come about against the wishes of the First Secretary would be if the Government Party split. It might well do so. For example, there is generally a Left and a Right in a Party. The executive of the Scottish National Party might pursue a hard-line policy, an all-out separatist policy, and that might split the Scottish National Party. But even then, so long as the Government continued to control 34 per cent. of the seats, there could not be a dissolution. The Government might be paralysed but they could not be ousted.
The Government would indeed be paralysed because not only could they not carry their legislation, and might well have Opposition legislation carried against them—although I suppose that in the Assembly, as elsewhere, they could not do that if Government expenditure was involved—but also the Secretary of State could operate Clause 36 to prevent them from carrying out administrative acts, or compelling them to carry out administrative acts against their will, when the Secretary of State could argue that a reserve matter was involved, however indirectly.
This seems a very undesirable state of affairs. It seems wrong in principle for Parliament to legislate in such a way as to keep in power a Government controlling little more than one-third of the

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seats, especially under a system of fixed-term elections. This seems wholly undesirable. I must say that it is one thing to agree, and we do agree, that it should not be made easy to have mid-term dissolutions, and that that should happen only as a last resort, but it is quite another to make it virtually impossible ever to have them except at the wish of the Government themselves.
It is for that reason that it seems politic not to set the requirement of votes for a dissolution at too high a level. It is for that reason that I propose the more modest requirement of three-fifths for two-thirds. It will be within the experience of most of us, including the right reverend Prelates present, that a 66⅔ vote is extremely difficult to obtain. It is reasonable enough to provide for a two-thirds majority where a constitutional change is involved, but it does not seem reasonable to insist on that merely in order to turn out a Government.
I should like to say one thing more on this, because I think that we have to exercise practical imagination as to what will happen under the new arrangements in Scotland. The Government seem to think that the Assembly will model its practice, its behaviour if you like, certainly its working, on the House of Commons. That may prove to be a dangerous illusion. The Government must try to exercise imagination, if only because of the constraints they are imposing on the Assembly and the inevitable human reactions to constraints of any kind. One of the constraints isa fixed term. The Government are providing a little flexibility in this clause. I suggest that they should provide a little more. I beg to move.
3.5 p.m.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): As we know, the provision for the premature dissolution of the Assembly was inserted into the Scotland Bill as a result of opinions expressed during the Committee stage in the other place. As the noble Lord, Lord Drumalbyn has just said, certainly the basic concept is of a fixed-term, four-year Assembly. Noble Lords will be aware by now, as we spoke about it from time to time yesterday, that premature dissolution is intended as a fallback provision to resolve a political crisis in the
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Assembly. The Government do not consider that it would be in the interests of good government for that to become the norm rather than the exception. I think that that is stating the obvious. Against that conceptual background, the Government are of the view that, on balance, the two-thirds requirement is pitched at about the right level.
Also I readily acknowledge the point made by the noble Lord, Lord Drumalbyn. I agree with him as to the likely course of events which would lead to unanimous dissolution. Speaking as of now, I cannot imagine a further course of events leading to the same unanimous conclusion to dissolve the Assembly. I accept the point he made. I do not think that there are additional courses which could lead to unanimous dissolution. If there are some, I have not thought of them. However, I would go on to say that this is essentially a judgment and that I admit, in making that judgment, that the Government cannot produce a list of arguments to say that it is absolutely right that the figure preferred should be two-thirds and that such a figure is more right than any other figure suggested.
The Amendment would provide no great different test. In an Assembly of 100 Members, for example, 67 would need to vote for premature dissolution on the test provided by the Bill, and 60 if the Amendment were adopted. The figures are 100 and 90 respectively for an Assembly with 150 members. My view is that the difference between us is marginal. I cannot account it significant. I am prepared to say to the noble Lord that I shall reflect upon the points that he has made. I might give this matter further consideration.
Lord DRUMALBYN: May I ask whether the noble Lord, while reflecting on this, will look at some of the examples in other countries where a two-thirds majority has been required and narrowly missed? I think he will find that it is far from uncommon for the vote to be between 60 and 66⅔. It is, in practice, an important difference.
Lord MACKIE of BENSHIE: We welcome the Minister's offer to reflect on this matter, because two-thirds is very much a traditional figure. We had to

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convert it, with the benefit of the noble Lord, Lord Drumalbyn, into metric figures and percentages before we understood it, and it was some little time before we were sure whether three-fifths was less or more than two-thirds. But even with our limited mathematical ability—
Lord DRUMALBYN: I had forgotten how long it was since the noble Lord was at school.
Lord MACKIE of BENSHIE: I was not much better then. However, I am glad that the noble Lord is to reflect on this matter, because two-thirds is an enormous majority. When one considers an Assembly in which 60 per cent want to dissolve, it is quite enough on which to make a very strong case for dissolution.
>Lord DRUMALBYN: Was the noble Lord on the Government Front Bench going to say something more? I thought he received a missive a little earlier—
Lord KIRK HILL: I do not think that perhaps I expressed the middle part of my remarks with my customary clarity, but upon reflection I thought I would leave well alone.
Lord DRUMALBYN: If the noble Lord is not going to have a second shot, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 50 and 51 not moved.]
3.11 p.m.
Lord STRATHCONA and MOUNT ROYAL Lord STRATHCONA and MOUNT ROYAL moved Amendment No. 52:
Page 2, line 44, at end insert—
("(3) No Order shall be made under this section unless a draft thereof shall have been laid before and approved by resolution of each House of Parliament.").
The noble Lord: This Amendment, too, is addressing itself to the problem of the dissolution in the case of the calling of a special election, as distinct from an ordinary election. The point is quite a simple one. It refers back to a matter we have already talked about last night, under Amendments Nos. 44 and 47. What we are worried about here is the possibility of the Assembly dissolving
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itself in order to challenge Westminster. As we have already said, this would be disastrous for the relationship between the legislating bodies in the United Kingdom and for the United Kingdom as a whole. We are saying here that any special dissolution should be made subject to Parliamentary approval.
There is a practical advantage in that this would help ensure that the Election date is convenient to everybody, not just convenient to either the Executive or the Government. It is true that at the moment the dates of the Election at Westminster are strictly under the control of the Government of the day, almost exclusively. I fully recognise that we are talking about an exceptional circumstance here, in that the norm will be a regular four-year term. As we have said, a special dissolution can take place only on the basis of a two-thirds majority; or it may be 60 per cent. or two-fifths, depending on what the noble Lord, Lord Mackie of Benshie, cares to call it, and upon how the matter is finalised with regard to the majority required.
But that being so, is it not right that a number of factors seem to follow? First, there should be no special advantage for the governing body in the Assembly. Secondly, we want to minimise the danger of the Scottish Executive challenging Westminster. Thirdly, we want to be sure that there is no possibility of manipulative advantage being used by the Government in Westminster; and fourthly, we want to avoid the possibility that the Executive in Scotland and the Government in Westminster get into cahoots to use the dates on which the Assembly might be dissolved, for their individual or collective advantage. It is for these reasons that we are suggesting that where there is to be a special dissolution of the Assembly, this should be subject to the agreement of both Houses in Westminster. I beg to move.
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey): As the noble Lord said, this matter is connected with Amendments Nos. 44 and 47, which we were discussing last night. As the noble Lord has indicated, Amendment No. 52 would specifically require an order for dissolving theAssembly and appointing the date following the dissolution for the Election, and such an order would have to

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be approved by Resolution of each House of this Parliament. The noble Lord has returned to the dangers mentioned by his colleague the noble Earl, Lord Ferrers, last night.
I said then, and I repeat now, that it is difficult to see the circumstances in which the Administration in Scotland, if it were able to command a two-thirds majority—or it may be a 60 per cent. (three-fifths) majority—in the Assembly, would want to terminate the life of that Assembly, when all that could happen would be that there would follow an Election which would give life to the Assembly only for the remaining period of the four years. So I suggest, as I suggested last night, that this is not very realistic. When the noble Lord talks about possible manipulation, or about the Administrations in Edinburgh and in London being in cahoots, again one must have regard to that same consideration and to the size of the majority that is required.
I turn now to the other matter, that of conflict, and the desire, which we share, to try to avoid unnecessary conflict between the Assembly and the Administrations in Edinburgh and Westminster. If the intention of the Amendment is to provide for the possibility that either House should be able to prevent a premature dissolution, it surely should be recognised that such action—the prevention of a dissolution, which two-thirds of the Assembly wanted—would itself be bound to precipitate an acute constitutional and political crisis between Parliament and the Assembly. As I have said, two-thirds of the membership would have voted for dissolution. As the elected representatives of the Scottish people they would be prepared to explain and to justify their determination to bring that particular Assembly to an end, even though they could have a new one for only a relatively short time. So the elected representatives in Scotland would say, "We simply can't carry on. A crisis has been reached, and we have to solve the matter in this particular way".
I would suggest to the noble Lord that in these circumstances it is inconceivable that either House of Parliament could turn round and say to the Assembly in Edinburgh, "No, you must carry on."In particular, I should like to put one detailed aspect of the matter to him. Let
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us suppose that the Assembly decided by a two-thirds majority that it wanted to dissolve, and then the House of Commons said that the Assembly may dissolve and accordingly approved the Resolution. Could this House then say, "No, you can't?" That surely would be one situation which would be allowed by the Amendment which the noble Lord puts forward. I ask him to consider these implications, and to consider whether the possibilities of a conflict—of a grave and deep conflict—would be greater if the Amendment were put into the Bill.
In relation to possible manipulation, I turn to the minor point about timing. If the intention is to provide Parliament with an opportunity to approve the date of an Election following dissolution, I would submit that this is really unnecessary. The Secretary of State's discretion as to the date is limited to a period of two months after the Resolution has been passed, and given the decision taken by the Assembly that it cannot carry on, and cannot resolve its difficulties within its present membership, one would expect an Election to take place reasonably soon. There must be some flexibility for reasons which we discussed in a different context last night, and I need not elaborate them again.
There is one final point which I think is technical, but vital at this stage, at any rate. Let us suppose that the Assembly was to resolve by the necessary majority that it should be dissolved and that at that time Parliament was not sitting. Does the noble Lord envisage that Parliament would have to re-convene? I think that Parliament might be somewhat irritated if, having slogged through a heavy Session, it was called back simply for the business of approving a Resolution which, in the circumstances, it could hardly refuse to approve. So, for all those reasons and others that I need not specify, I invite the noble Lord to withdraw the Amendment.
The Earl of PERTH: I should like to join with the noble and learned Lord, Lord McCluskey, in suggesting that the Amendment that has been put forward is more likely to create trouble between the Westminster Parliament and the Assembly than the other way round. After all, as the noble and learned Lord

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has said, if two-thirds—or even threefifths—of the Assembly decide that they want a dissolution it is a pretty clear indication that they really do want it. I think that under those conditions to expect Westminster to give its specific approval is either purely applying a rubber stamp or creating trouble which none of us wants.
Lord HUGHES: Another point which has emerged from what my noble and learned friend has said, and which I had not realised on reading the Bill, is that if there were this special election the Assembly thus elected would sit not for four years but for only the remaining part of the original term. I should think that in those circumstances the Assembly would have to have very good reasons indeed before it would inflict such a burden on itself even for a limited period. I think that—my noble friend having drawn attention to this point—it is a very strong added reason for us not seeking to prevent them carrying through a dissolution in the circumstances where 60 per cent. or two-thirds of them want that dissolution.
Lord McCLUSKEY: Perhaps I might say this for the benefit of those who have not yet had an opportunity to read what was said at a late-ish hour last night. The Government point to that particular consequence of these provisions to show that this is really a point of high crisis which is reached before the Assembly chooses to dissolve itself. My noble friend Lord Hughes has made that clear as well, and I am obliged to him.
Lord STRATHCONA and MOUNT ROYAL: I am heartened to find that the noble Lord, Lord Hughes, was labouring under the same illusions as we were when we put this Amendment down—and I may as well admit it now. We received further enlightenment last night. I was in fact going to raise the question of the term of the Assembly, but last night I came to understand clearly that the concept was that the four-year term was going to be the law of the Medes and the Persians, and that anything else you did within that was only a minor and rather a rare occurrence. What we had in mind here was that this was going to be an additional hurdle to make it even more difficult to secure a special dissolution,
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which I think all of us agree is basically the point for which we are aiming; and it is something which the noble Lord, Lord Glenkinglas, was referring to last night.
We still have reservations about the matter of timing. the two months' leeway that we talked about last night, but we have already dealt with that. There was the sting in the tail of the remarks of the noble and learned Lord when he threatened us with the possibility of our having to be called hack in the middle of the Summer Recess. That seems to me sufficient reason in itself for begging leave to withdraw this Amendment with indecent haste.
Amendment, by leave, withdrawn.
On Question, Whether Clause 3 shall stand part of the Bill?
>Lord DRUMALBYN: Perhaps I may revert to a part of the discussion last night because I think it is relevant in view of the discussion we have just had. Should there be a breakdown or a crisis, or whatever you like to call it, in what we call the back-end—that is, in the autumn—and there is a dissolution, there would then be scope for a two-month interval before the election. At the other end, there is the power to advance by two months the ordinary time for the ordinary election, which would be in March. That is not a totally improbable position, and surely the Bill should provide some flexibility there. If there was to be a very short interval and if the newly-elected Assembly was to be there for only two, three or four months, would it not be sensible to put into this clause with which we are dealing a provision that, in those particular circumstances, it would be possible to advance the date of the ordinary election, so as to avoid having a new Assembly for a very short time?
Lord McCLUSKEY: May I say to the noble Lord that I think he is wrong. There are two points. First, if in fact there are only four months to go to the date of the next ordinary election, how likely does he think it is that, after slogging through for three years and eight months, the Assembly will, by a majority of two-thirds, dissolve itself? Surely it is highly improbable. Secondly, once one starts to tamper with the date of the next

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ordinary election in relation to a dissolution, why stop at two months? Why not make it three months or four months? Eventually, one finds oneself in the pit that the noble Lord, Lord Strathcona and Mount Royal, saw opening up before us. ft is not there, but the noble Lord, Lord Drumalbyn, is suggesting that it should be there. For these reasons I would suggest that he is wrong, and that the Bill is perfectly sound as it stands and will work.
Lord DRUMALBYN: It might prove to be a high price to pay for this form of rectitude. I am in favour, in this kind of case, of a little more latitude.
Lord McCLUSKEY: I omitted to mention one point that I should perhaps have said when I was on my feet. I was asked a question by the noble Earl, Lord Ferrers, last night about the meaning of the provision that the Assembly shall stand dissolved "on the eve of the next election. That is in Clause 3(1)(a), which provides that the Assembly
"shall stand dissolved on the eve of any ordinary election of members ".
The intention and the practical purpose behind this provision is plain. The Assembly should be dissolved before the day on which its successor is elected. It must therefore dissolve the day before the election; and the Bill, rather than refer to "the day before", goes one better, I think, by using the expression, "the eve of any ordinary election".
That, I would suggest, as I did last night, conveys the precise flavour required when the old Assembly is automatically dissolved immediately before the first moment of the election day. It is the context which matters, of course, but we are satisfied—and we have consulted Parliamentary counsel to check that my observations last night were right—that this provision, in this context, gives us the continuity for which I argued last night.
Lord CAMPBELL of CROY: My noble friend Lord Ferrers cannot be here at this moment, but on his behalf I should like to acknowledge that the noble and learned Lord has looked into this point and that he has made this statement today. It seemed unclear in the Bill exactly what the term "the eve" meant: whether it meant a Wednesday or a Tuesday, at
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what time of the day, or whether it was midnight. I think that what the noble Lord has added to his remarks last night will help to make it clear. Again, I am afraid this kind of situation arises when a great part of the Bill has not been discussed in another place; but I am grateful to the noble and learned Lord for adding to what he said yesterday.
Clause 3 agreed to.
Clause 4 [Elections to Assembly]:
3.29 p.m.
Lord GRAY Lord GRAY moved Amendment No. 53:
Page 3, line 3, leave out ("(a)").
The noble Lord said: It might be convenient to the Committee if, in moving Amendment No. 53, I was to speak also to Amendments Nos. 54, 55, 56, 57 and 58, which also stand in my name. They are a package designed to achieve a single purpose, which I hope I can explain quite briefly. Clause 4(1) tells us who may vote at an Assembly election and in which Assembly constituency he is to vote. No devolution principle is involved here. If there is a principle here, then it is the principle that voters should vote only once. The subsection starts to adhere to that principle, but then seems to wander away from it.
I sympathise with noble Lords who think I am a spoil-sport in drawing attention to subsection (1)(b), which seems to suggest that Peers will be able to vote in as many constituencies as they have qualifications to vote at elections for local authorities lying in different Assembly constituencies. That may be an excellent idea and I should be the first to congratulate the Government if I really thought they had had a sudden attack of wisdom or that the Party opposite had finally come to appreciate the true worth of Peers. Sadly, however, I believe the truth is that the drafting has gone wrong.
I do not seriously entertain the idea of noble Lords dashing around Scotland on Assembly election day, rushing in and out of a variety of polling booths, but perhaps there is slightly more in subsection M(b) than just that strange prospect. We must consider those who will have to operate the provisions of the Bill, if it one day gets through Parliament

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and passes the referendum test. As subsection (1)(b) stands, I believe it enfranchises any Peerwho has a local government vote in Scotland, no matter where he normally resides, be it Thurso,Tiverton or Timbuctoo, and no matter whether he is Scots, Irish, Welsh or English.
Furthermore, surely there is considerable potential for confusion over which constituency he should vote in. This arises from the fact that the Bill specifies local government elections as the qualification for Assembly voting. As there are three tiers of local government and as the Bill calls for the matching of the local authority area in whole or in part to the Assembly constituency, I can see considerable possibilities for confusion.
I do not think I need explain exactly how my Amendments work, beyond perhaps pointing out that by leaving out "parliamentary" we bring everybody referred to under the total umbrella of the comprehensive register of electors, as opposed to limiting it purely to "parliamentary", and this enables us to consider Peers in the way I have suggested in my Amendment No. 58. The recipe is perhaps rather simpler than it looks on the Marshalled List and I hope and believe that the result of the Government perhaps accepting my Amendments will be that the provision will be somewhat clearer and, I think, read rather better than the complex formula at present in the Bill. I do not think the Government have a leg to stand on otherwise, unless they plead some deficiency in my amateur attempt at what was a quite complicated drafting exercise. I beg to move.
3.34 p.m.
Lord McCLUSKEY: I have heard it said that if one exhibits a rare and surpassing skill at playing billiards it is the sign of a mis-spent youth. I am not quite sure what it betokens about the youth of the noble Lord, Lord Gray, but he has exhibited a rare and surpassing skill at detecting the most minute but real flaws in the drafting of a very complicated piece of legislation and I can only commend him for it. However, he has seen a crack and called it the Grand Canyon, whereas it is not nearly so bad as he thinks.
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First of all, the Government's intention is that persons entitled to vote in an Assembly election shall be those who live in the Assembly constituency and would be entitled to vote at Parliamentary elections, and Peers who live in the Assembly constituency. I accept that the clause as drafted may not have achieved precisely that. As to voting twice, however, there is no possibility of that because it is the Government's intention, in the order which is to be made under subsection (3), to attract Section 48 of the Representation of the People Act 1949, which makes plural voting an offence. Thus, we cannot stop Peers voting twice but we can punish them for it.
We accept that there is a real point here; it is a minor point but a real one. I would also suggest—though I should not want to spoil Lord Gray's afternoon by specifying the defects in his Amendments, which we think can be improved upon—that, in a spirit of mutual tolerance, we can agree on that, and we will return to the matter. In the meantime perhaps I may ask the noble Lord to withdraw his Amendments at this time.
Lord CAMPBELL of CROY: Before that happens, I must say that I am interested that the noble and learned Lord, Lord McCluskey, should have expressed surprise, for my noble friend Lord Gray has in the past exhibited his skill at detecting flaws and lapses in the drafting of Bills. He has done it again today. From my short experience of three years in your Lordships' House, I can recall previous occasions when Lord Gray has been able to demonstrate his skill in this matter and assist the Government of the day, and it has been a Government of the same complexion as we have now. The Government are therefore right to be grateful to my noble friend for having drawn attention to this matter. I am sure noble Lords will agree that we want to eliminate any ambiguity from the question of who is and who is not eligible to vote for this new body, now called the Assembly, and I hope Lord McCluskey will be able to bring forward Amendments which, making use of the Parliamentary draftman's skill as well as that of my noble friend, will have no flaws in them.
Viscount THURSO: We must be grateful to the noble Lord, Lord Gray, for his skill in detecting flaws. We must also be grateful to the noble and learned Lord, Lord McCluskey, for the generous way in which he has recognised that skill. When the Government reconsider the drafting of this part of the Bill, will they also be telling us how one establishes domicile because this will apply to anyone who goes on to the electoral roll? What will the test be if, for example, a Peer has a pied à terre? How will he establish that it is only a pied à terre whereas in fact he lives in Caithness, Aberdeenshire or some other such important place?
Lord McCLUSKEY: The rules about this are the same rules as apply in ordinary elections and, ultimately, if the determination by the electoral registration officer does not satisfy the Peer who has more than one residence, he is entitled to appeal; I think that, at present, the appeal is heard by the sheriff principal. He can therefore litigate about that matter and, from a sheriff principal in Scotland, he is bound to get a decision which is satisfactory, if not satisfying.
Baroness ELLIOT of HARWOOD: Is it not a fact that if one has two residences which enable one to have a vote in, say, London or wherever one happens to live in Scotland, one can opt to vote in one of those two places; one can say, "I will not vote in London: I opt to vote in Scotland"? If that is so, then one has only one vote and in that case it would be in Scotland.
Lord McCLUSKEY: The last time that I was involved in that matter was when I was sitting as sheriff principal in Dumfries and I had to determine that question. I was well guided by the authority of the Court of Session in Scotland which determined the matter contrary to the view expressed by the noble Baroness, but also contrary to the view expressed by the court in England. The position probably is still that Scottish law in that matter is different from the law in England. As we are talking about Scotland, the answer that I gave earlier obtains; so that the position is that the matter falls to be determined by the electoral registration officer subject to a right of appeal to the sheriff principal.
Lord TANLAW: On a point of clarification, there could be occasions when one could opt, for a Parliamentary election, to vote in one place and for a local election, and therefore the Assembly, in another. Therefore, I hope the noble and learned Lord will accept that we cannot make a general and too rigid position here because I can see a conflict of choice.
Lord McCLUSKEY: If the matter should be in doubt then, certainly, when we come back to it, as we must, perhaps I can take that opportunity of explaining it more fully and with precision and accuracy.
The Earl of LAUDERDALE: Would the noble and learned Lord please explain one thing? We are all greatly pleased at the kindly way in which he has responded to this Amendment and at the generous, flexible, ready-to-learn approach that we did not see in the first Amendment to the Bill. Can he explain how the Bill got to us in this state? Could he tell us whether this clause was fully discussed in another place or whether that was perhaps made difficult by the intervention of the guillotine? Could he tell us this for the record?
Lord McCLUSKEY: The answer is obvious. We do not have Lord Gray in the other place.
Lord GRAY: I am grateful for the way in which the noble and learned Lord has responded to this Amendment. think it would be cavalier of me now to attempt to argue with him as to whether his view or mine is correct on the nature of the points that I have raised. I am very grateful to noble Lords who have spoken and for some of the things which have been said about me; but I was wondering at certain moments whether I was getting a good character or a bad one. It depends on the point of view. However, in view of the offer made by the noble and learned Lord,I have no hesitation in withdrawing my Amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 54 to 58 not moved]
[Amendments Nos. 60 and 61 not moved.]
3.42 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 62:
Page 3, line 34, after ("the") insert ("Scottish").
The noble Lord said: In the absence of my noble friends I should like to move on their behalf Amendment No. 62 which would insert the word "Scottish" in this clause before "Consolidated Fund". This is a probing Amendment in order to give the Government an opportunity to explain how they think expenditure on the administration of the Assembly and the elections to it should be met—whether it should be from the United Kingdom, or whether some of it or all of it should be spent from the Scottish Fund.
The Amendment, as it falls in this clause, would mean (if it were accepted) that an order under this clause would provide for the charging of any sum not to the United Kingdom Consolidated Fund but to the Scottish Consolidated Fund as brought in under this Bill. This seems to be a good opportunity to allow the Government to explain how they view the allocation of expenditure on this new machinery of Government which is proposed in the Bill. I beg to move.
Lord McCLUSKEY: I am grateful to the noble Lord for giving me this opportunity. The principle on which this provision is drafted is that as the Bill stood when it came to this House the control of the franchise and electoral matters generally was not to be devolved but was to remain under the control of Westminster. The basic arrangements are set out in Clause 4 of the Bill and the detailed arrangements were to be set out in an order to be made under subsection(3). On the basis that the control of the franchise and electoral arrangements were to remain with Westminster, it seemed sensible (and, in my submission, right) that the charge should be upon the Consolidated Fund: but as the result of the Amendment carried yesterday (Amendment No. 24) the Committee has amended the Bill so that the initiative, at least, and the responsibility for reviewing the electoral arrangements has passed from Westminster to the Assembly. It follows logically that if one applies that principle, this Amendment ought to be accepted.
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When I say that it has been accepted, let me make it quite clear that it has been accepted as a consequence of the amendment of the Bill yesterday through Amendment No. 24. If, after Report, that provision remains in the Bill—or if it is altered but in substance remains—then it seems sensible that the Scottish Consolidated Fund should carry the charges and the Government would not see this Amendment as anything other than consequential upon Amendment No. 24. In those circumstances and with that explanation, and without prejudice to the ultimate position, I would not be opposing this Amendment as a consequence of Amendment No. 24.
Lord DRUMALBYN: In practice, would it make all that difference? Presumably a sum would have to be allocated by the United Kingdom Parliament for the purpose of the running of the Assembly; otherwise where would the money come from? It could not come out of the rate support grant.
Lord McCLUSKEY: There is substance in that. If, at the end of the day, the charge is to he upon the Scottish Consolidated Fund, it is one of the fixed items at the start of negotiations when the amount of funds falls to be determined. Therefore, it may in practice make very little difference.
Lord MACKIE of BENSHIE: It would be a further deterrent to dissolving the Assembly and having an extra election in the four-year term, assuming the allocation of grant to the Scottish Assembly would allow for the expenses of only one election every four years. Therefore, if the cost were to fall on the Scottish Consolidated Fund it would greatly aid Scottish independence—because if you are going to be independent, I think you ought to pay for it. Therefore, I think that this is quite a sensible Amendment.
Lord CAMPBELL of CROY: I am grateful to the noble and learned Lord for his acceptance of this Amendment. I recognise that he has accepted it at this stage only because this Committee accepted, by Division, Amendment No. 24 which was moved yesterday by the noble Earl, Lord Perth. We will return to this subject when we are discussing the

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financial provisions in particular in Clauses 40 to 45, when the whole question of the Scottish Consolidated Fund and other funds for which there are provisions in the Bill will be under discussion.
At this stage, therefore, I can do no more than thank the noble and learned Lord for accepting this Amendment; although I recognise that the Government reserve their position to try to reverse that situation should the Amendment of the noble Earl, Lord Perth, be rejected later on during the stages of this Bill.
On Question, Amendment agreed to.
Clause 4, as amended, agreed to.
Clause 5 [By-elections]:
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 63:
Page 3, line 43, after ("a") insert ("constituency").
The noble Lord said: This is a consequential Amendment. I beg to move.
On Question, Amendment agreed to.
3.50 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 64:
Page 4, line 9, at end insert—
("(4A) Subject to subsection (4) of this section where the seat of an additional member of an Assembly is vacated the vacancy shall be filled by the first willing candidate of the party of the vacating member on the relevant party priority list as prepared at the preceding ordinary election under the provisions of Part V of Schedule Ito this Act, such candidate not already being a member and having indicated his willingness to fill the vacancy in such manner as may be required by the standing orders of the Assembly.").
The noble Lord said: This new subsection makes provision for the filling of a Party seat (that is to say, an additional Member seat in the Assembly) which falls vacant. I think your Lordships will find it obvious that it would not be appropriate to replace a Party Member—that is, one of the 50 added Members—by the same method as a constituency Member is replaced; that is, by a straight by-election. The Member to be replaced does not represent a constituency but an electoral region, and it would be, to say the least, cumbersome to organise a regional election for one by-election. Moreover, since the purpose of the regional list is
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to maintain the proportion between Parties on the basis of the voting at the most recent election, whether it is ordinary or mid-term, it is logical that the replacement should come from the same Party as the Member to be replaced. On the regional list system it is also logical that the replacement should take place on a regional basis rather than on the basis of a nomination by the Party on a national plane.
The method of replacement proposed is therefore to offer the vacancy to the person on the regional Party list who was highest on the list after the allocation of the Party seats had been made in the last election. if he declines, the nomination will go to the next one on the list, and so on. The vacancy would not be filled if the next election was due in three months or less as in the previous subsection. There are six, seven or eight Party seats for every electoral region except the Highlands and Islands, where there are four, and it is unlikely that any Party would be allotted more than three seats at an ordinary or mid-term election. This is how the system works out.
There would obviously be strong pressure to accept on the person entitled to the first refusal of the vacant seat. If he did not do so, his chances of being high on the priority list at the next election, I imagine, would be likely to be impaired. To be absolutely sure that the law would provide some method of filling the vacancy, should all the persons on the Party's regional list at the last election refuse it, it might be desirable to make some provision. If your Lordships accept this Amendment, I shall consider with the co-sponsors of it, in the light of what may be said about the Amendment, whether such provision is really necessary. The obvious way of dealing with the situation would be to allow the regional organisation of the Party to appoint a successor. For my part, I doubt whether it would be desirable to require them to do so from persons who had presented themselves as candidates for either constituency seats in the region or for Party seats in other regions. I suggest that that could safely be left to the Party acting in accordance with its own rules. I beg to move.
Lord TRANMIRE: This exposes the undemocratic nature of the nominated

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member system. I had always understood by-elections to attempt to reflect a contemporary measure of support for varying political Parties at the time of the vacancy. What is happening here is it becomes Buggins's turn, and I would ask my noble friend to give some consideration to some of the more undesirable aspects of this particular Amendment. Is it necessary to have the filling of a vacancy of a nominated member? If a nominated member dies or is ill, it might be better just to leave the vacancy until the next election because one does not then get the abuse of what I always believed to be an important electoral consideration: that if support varies from one Party that is reflected in the contemporary Assembly. That is not happening under this Amendment.
A further point I would ask my noble friend to consider is that if one is doing this the wording of this particular clause should be amended. As he rightly said, one has to provide for the contingency of nobody on the particular Party list wanting to fill the vacancy. For the major Parties that is very unlikely; but for the minor Parties—and we were talking the other day about independents where there might only be two or three in the Party list—there would be a likely possibility that no one would come forward.
There are many awkward aspects in this Amendment, some of them merely drafting. I do not want to weary the Committee with those at the moment. But if one is going to have a system which is not an election but purely a Buggins's turn nomination, some of the wording in other subsections should be altered. I hope that more attention will be paid to this aspect of the additional Member system because I do not think that this is properly provided for in this Amendment.
3.56 p.m.
Lord CAMPBELL of CROY: My noble friend Lord Drumalbyn has again explained what happens in the case of a vacancy for a seat and the equivalent of a by-election as we know it in elections in this country at the present time. He said something about this last night and he has added to it today. The Government may regard this Amendment as consequential upon the Amendments that have previously been passed; but of course it
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means that there would be no by-elections as we know them, no actual elections. Someone would succeed to the vacant seat if it occurred between the ordinary elections of the Assembly.
My noble friend has drawn attention to something which needs to be looked at: that is, there may not be anybody available on the list by the time the vacancy occurs. The list may have run out or those who are still on it may not be available or may refuse. My understanding is that the list is drawn up at the time of the general election of an Assembly, every four years, and the numbers are limited for each Party to the number of additional seats for the region in question. If some of those names are successful, the list will consist of the residue. There is no way by which the list can be added to during the four years or during the life of a session of the Assembly. I agree with him that perhaps that needs to be looked into, otherwise there could be a situation in which there was a blank and some doubt as to how the seat should be filled.
My noble friend Lord Tranmire has pointed out that this is something that could be regarded as undemocratic. He has said that the results of by-elections can be regarded as taking the pulse of the popularity or unpopularity of the Government of the day. There is another view: the results of by-elections often reflect a distortion of the actual feeling in the country as a whole because everybody knows that the result will not change the Government of the day, whereas in a General Election people do not know that. Of course there is also a chance of protesting against the Government of the day.
The present Government face a couple of tests in Scotland fairly soon, and I have a feeling that if the results are not to their satisfaction, they will say that it is not representative of the feelings in Scotland or the country. I do not think that that argument is one that I would necessarily follow all the way. I would register with my noble friend that we must accept that, if this Amendment stays in the Bill, it will mean that the whole system of by-elections as we have known them in this country will go by the board and it will simply be a question of someone from the list coming forward to take the vacant place.
Lord HUGHES: Unless I am misreading this Bill dreadfully, it seems to me that the noble Lord is wrong. There are by-elections. If a vacancy occurs for an ordinary Member, a by-election will be held to fill the place. This Amendment applies only to the 50 additional Members, or whatever number it may be. The noble Lord is not interpreting the situation correctly.
Lord CAMPBELL of CROY: May I say straight away that I have not misinterpreted the Bill but I have not expressed myself as accurately as I should have done. The noble Lord, Lord Hughes, is completely right. What I was saying was that, when a vacancy occurs among the additional Members, there will then be a procedure which is new in this country: that is to say, there will be no direct election. It would simply be a matter of someone moving into the vacancy without any election taking place. I entirely agree that I over-simplified the situation in what I was saying and I am glad that the noble Lord, Lord Hughes, intervened to point out that, as the Bill stands at the moment, the case applies only if there is a vacancy in the 50 additional Member seats and not in the 100 directly elected. But, again, I must say that if this Amendment ispassed, a procedure is coming into this Bill which is quite new to our country.
Viscount THURSO: May I —
Lord CAMPBELL of CROY: May I give way in a minute?—because I have not finished the point yet. We must realise this fact. I personally support this group of Amendments and I am trying to make certain that we all know what the effect will be. What this Amendment means is that someone from a list would move into a vacancy when a vacancy occurred among the additional Members: that is to say, those who are not directly elected. I give way to the noble Viscount.
Viscount THURSO: On the point about this being a new procedure, in fact local authorities very often make up vacancies in their ranks by co-opting to their number the highest losing candidate at the previous election. It is a procedure I have seen adopted on many occasions in the case of the county council, Thurso
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Town Council, and it occurs, I am sure, in many other town and county councils throughout the country. So there is nothing new in co-opting the highest scoring loser when a vacancy arises and it saves the expense of a by-election when one is not really necessary.
Lord CAMPBELL of CROY: I am grateful to the noble Viscount, but I think it is a rather separate point, because I was not thinking in terms of local government. It does mean that people who have been in local government and concerned with such situations will recognise that this is a fair system, but I still say that we are breaking new ground in this because I regard this new body, the Assembly, if it comes into being, as being something considerably different from local government. I think the noble Lord, Lord Wigg, wanted to intervene.
4.3 p.m.
Lord WIGG: I am thoroughly confused: it is probably my own fault because I am stupid. I was going to make, first of all, the point that was made by the noble Lord, Lord Hughes. I do not think your Lordships need spend much time on this because the other place will not wear it anyway. It seems to me that all the procedure on which this Amendment is concentrating needs to be thought out. If you are going to have an additional list, as I understand it, that additional list would have to be drafted in some order of priority. If that is not so, the word "first" does not make much sense. Very good; then we get a movement of the electorate, and the numbers which will be eligible from the additional list will depend on the numbers which are elected. It is all very well to suggest what you are going to do when a vacancy occurs, but during the course of the four years the number of Members decreases and somebody has to drop off. I am not sure that that has been wholly thought out. I do not want to delay the Committee, but I believe we are really wasting our time because the other place is going to wear none of this.
Lord CAMPBELL of CROY: I gave way because I thought the noble Lord wanted to make an intervention connected with what I was saying. He seems to have made a point addressed to my noble friend.

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However, I do not think that your Lordships' Committee is wasting time at all, because this is a new system. This is not an Amendment which I think should just go through as a consequential Amendment, because it brings in something quite new for our country. Therefore, a short time spent on registering that fact and discussing the consequences is time well spent.
In addition to the comments I have made, I also wanted put a point to the Government, because if this Amendment is passed I cannot really raise the matter I want to raise on the Question that the clause stand part and so I should like to raise it now. On page 4 of the Bill, which refers to the system of the Government and which no doubt would apply to a vacancy in one of the directly elected constituencies, subsection (3) states:
"The date of the election shall be not later than three months after the occurrence of the vacancy."
I wonder whether the Government could state why they have chosen that particular period. My recollection is that there is not a restriction of that brevity where the other place at Westminster is concerned. Certainly there have been much longer periods before by-elections have taken place following vacancies which have occurred for seats in another place, very often for excellent reasons. I wonder whether the Government have simply produced this period out of the air or whether they have some example which they are following or some reason for choosing the period of three months. If the noble Lord would like to reply to this later I shall quite understand, but I realised that this was the moment when I ought to raise the matter.
Lord HUGHES: I have some sympathy with the view expressed by my noble friend, that in fact we may be wasting our time because it is unlikely that another place will accept this. After all, we must remember that they have already rejected proportional representation not at the behest of the Government but on a free vote. I think it is unlikely that they will revert. However, I think it is reasonable, without wasting time unduly, that we should send it along and in a form which is acceptable.
While I appreciate what was said by the noble Lord, Lord Tranmire, about "Buggins's turn", given that the object
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of having additional Members was to give full value to the percentage of votes given to the Parties at the ordinary election, it would be wrong to fill a vacancy other than from the Party lists, because if you had a by-election there would be no guarantee that the person elected would have been from the Party membership. So to that small extent you would then have completely frustrated the purpose of giving full effect to the value. Therefore, it must come from the Party lists in that way. I would suggest to the noble Lord, Lord Drumalbyn, that he ought not in fact spend too much time working out an Amendment to deal with the situation that would arise if the whole of the Party lists were exhausted, because I think that would be wasted effort.
Lord CLITHEROE: There is a reference to Part V of Schedule I to this Act, but in my Bill Schedule I does not have a Part V.
Lord DRUMALBYN: Perhaps I might explain that Part V has been moved into this Bill on Committee and therefore does not yet appear in the Bill as printed. It will appear at the next stage. Actually the noble Lord will find it on what is called a "manuscript sheet"—a sheet which was made available yesterday.
I should like to thank my noble friend Lord Tranmire for his remarks. I think we are in some difficulty over this. It is not his fault, nor is it mine; but I explained this fully last night and of course it has not been printed yet. Perhaps I might reply as quickly as I can to the points that he has made. Every system, as was said when we were discussing this originally, has its advantages and disadvantages. We have to decide here whether we will base the additional votes on Scotland as a whole or on the regions. Had we based it on Scotland as a whole, there would have been no conspicuous difficulty about this particular Amendment because obviously it would have been the Party which would appoint, as happens in West Germany. In West Germany there are equal numbers of added members and elected members, and there has never been any difficulty about appointing successors to the seats that fall vacant for one reason or another on the added member side.
I agree with the noble Lord, Lord Hughes, who I thank for his remarks,

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that it probably is not worth while to deal with a very unlikely contingency of this kind. As I explained, I thought that it would not arise. But, on the other hand, I thought it only right to expose the slight possible defect—I shall not call it an Achilles' heel, as it is not so vital as that —in the Amendment, and to ask for suggestions as to how it should be overcome. The advice seems to be, "Do not try".
I agree also with my noble friend, Lord Campbell of Croy that it is not fair to describe this as Buggins's turn, especially, as I explained last night, as a great deal of trouble will certainly go into the selection of the added members who may possibly be arranged in priority on a vote taken within the Party in the region. That would be one way of doing it. So that it is not wholly undemocratic; it is one way of acting democratically. If you are to have a system which seeks to bring the proportion of seats held by Parties into relation with the votes cast for those Parties, you must have some machinery of this kind and I should have thought it only right that, when a regional seat—that is an added Member seat—falls vacant, it should be filled from that Party in that region. I hope that the noble Lord will be kind enough to have a look at what I said last night, and then we can discuss it further, when I shall be very glad to meet his views in any way that I can.
However, this is, of course, a consequential Amendment, in a sense. One must make provision for seats falling vacant for one reason or another, and this seems a reasonably sensible way to do it. If the Committee agrees that it is reasonably sensible, I hope that it will allow the Amendment to go forward.
Lord WIGG: I beg the pardon of the noble Lord, Lord Campbell. I thought that he was sitting down and I went on to make an intervention, without realising that I was butting into his speech. I rise again only because I must say that I am absolutely confused as to how this would work. As I understand the Amendment which the Committee has already accepted —and the present Amendment is a consequence of that—there will be Members for a constituency and there will be a Party list, but they will be linked. The
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Party list will be linked. They will be sitting for a constituency—
Lord HUGHES: No, a group of constituencies.
Lord WIGG: A group of constituencies. But the point was made, in the course of the discussion on the Amendment itself, that they would, as it were, be regarded as constituency members. They would be linked—
Lord DRUMALBYN: Will the noble Lord allow me to intervene? May I just make that point clear? The Party seats arise from groupings of constituencies into electoral regions, and it is the added Members, or the Party Members, taken from those regional lists whom we are talking about here, and vacancies when they occur.
Lord WIGG: If that be so, this Amendment deals with the seats of additional Members.
Lord DRUMALBYN: That is right.
Lord WIGG: But what if there is an alteration, as there may well be through a change in public opinion, which substantially alters the numbers of votes? Am I to take it that the number of additional Members will drop off, or will they be elected for the whole period irrespective of what happens? Perhaps the noble Lord will enlighten me on that point.
Additional to that, if there is to be voting as to the order of priority on the list, is this a backdoor method of introducing primary elections into this country? If that is so, it is even more revolutionary. Or is it to be the subject of the fun and games—I shall not say intrigue—that certainly go on in the Labour Party at the present time in connection with the selection of candidates for a vacancy in a constituency? How is it to be done? Is it to be done privately, or is it to be done publicly?
What I would say, speaking only for myself, is that I entirely agree that, the original Amendment having been included, it is right that this Amendment should also be included in some form. But, on reflection, I wonder whether the noble Lord has really thought this one out, and

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whether it would be better to withdraw it now and reintroduce it at Report stage in another form, once all the contingencies have been thought through.
Lord TRANMIRE: I assure my noble friend that I listened to him with great interest last night, but, as I have some sympathy with the view of the noble Lord, Lord Hughes, I did not intervene because I thought that we should not spend too much time on something that might be to no purpose. But may I just make one additional point? We have already adopted my noble friend's own Amendment, which limits Clause 5 to a vacancy for a constituency Member of the Assembly. Therefore, if we are limiting this clause to a vacancy for a constituency Member, I suggest that it would be wise to have provision for a nominated Member —whether it is the kind of post that I would make, or that he would make—in a separate clause. That would make matters tidier, and would also make this Amendment unnecessary, because, as it stands now with my noble friend's Amendment, the clause is perfectly proper and provides for the whole case of a vacancy for a constituency Member.
Lord DRUMALBYN: I think that that is most helpful. I believe that we should certainly do that, but it would he merely a question of transferring the Amendment to a separate clause. I should most certainly be very willing to do that, but it might he useful at the present time to adopt this Amendment. I can assure the noble Lord, Lord Wigg, that this Amendment has been very carefully thought through, not just by me but by many other people, and, if he were to look at the explanation which I gave both on Second Reading and in Committee, he might find that the position was a little clearer to him—I will not say perfectly clear—than it is at the moment.
Lord MONSON: May I put it to the noble Lord, Lord Drumalbyn, that there may be one other possible flaw in his Amendment? He maintained that if a vacancy were to occur within three months preceding the next election, the vacancy would automatically not be filled by virtue of subsection (4). However, I suspect that subsection (4) does not have the effect that he supposes, because it refers
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specifically to elections not being held, and no election of any kind is proposed under his Amendment.
Lord DRUMALBYN: I do not think that I did suppose that. But I shall look at the point which the noble Lord has made and see whether it can be met.
Lord MACKIE of BENSHIE: Several noble Lords have asserted that the discussion is totally academic. I suggest to noble Lords and to the Minister that the Labour Party, the Government, and indeed many Members of the other place, may change their minds according to the results that come from the two by-elections which are pending in Scotland. In spite of the fact that the opinion polls are showing a favourable result for the Government at the moment, they may well be disposed to look at proportional representation in a much more kindly light by the time the Bill goes back to the other place.
4.19 p.m.
Lord McCLUSKEY: Leaving aside squalid political points, I must confess that I seem to be in a minority here, because I actually understand—I think precisely—what the noble Lord, Lord Drumalbyn, is proposing to do. Subject to that, and, of course, accepting this Amendment as a consequence of the amendment made the other night, I should have thought that the Bill would make more sense if the noble Lord's Amendment were to go into the Bill. There is one little point which I might ask him to consider; that is, that in the case of an elected member there may be some delay—we shall be speaking about this delay in a moment—of perhaps three or four months in the case of an elected member, and, as I understand the Amendment, there may be no delay at all in the case of an additional member who replaces. Perhaps that is a matter which will have to be considered, because it would seem to give a marginal advantage to the additional Member seats when there is a vacancy occurring.
Turning to the point I was asked about by the noble Lord, Lord Campbell of Croy—why there should be a period of three months— it will be recalled that the Assembly is to be set up for a fixed term of four years. It will also be recalled

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that, compared with the Westminster Parliament, it will have a relatively small number of Members—perhaps 100 or 150. A period of three months represents one-sixteenth of its life. Under the provisions of this subsection that period may he four months. It seems to he desirable that in such a small Assembly an indefinite period should not be left to the discretion of the Parties, during which time there may be no representation for a particular constituency and the membership may he diminished.
In this connection I can point to the Local Government (Scotland) Act 1973, which contains a similar provision in Section 37(l), with which the noble Lord, Lord Campbell of Croy, will be familiar: namely, that on a casual vacancy occurring in the office of councillor, an election to till the vacancy shall be held within three months from the date on which the vacancy is deemed to have occurred. There is no magic about the period of three months, or the period of three months plus one that is allowed for. However, having regard to the life of the Assembly, it seems to be a reasonable period.
Lord CAMPBELL of CROY: May I thank the noble and learned Lord for having answered my point.
Lord DRUMALBYN: I should also like to thank the noble and learned Lord, although I think that the advantage to which he has referred is very marginal.
On Question, Amendment agreed to.
On Question, Whether Clause 5, as amended, shall stand part of the Bill?
4.22 p.m.
Lord GLENKINGLAS: May I come back in a more orderly fashion to the point that was raised by the noble Lord, Lord Campbell of Croy. It is a clause stand part point which is unconnected with the last Amendment. I am entirely in favour of having a fixed period after the death or resignation of a Member. That is quite right. However, my own view is that a period of three months is possibly too long. Nevertheless, I am certainly not going to quarrel with the Government if they feel that that period is right. On the other hand, I am slightly unhappy about
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the drafting of this particular subsection, because it seems to me to be quite unnecessarily verbose.
I cannot, obviously, he absolutely sure about this, but I think that what the Government intend to say is that an election shall be held not later than three months after the vacancy and the date when it is reported to the presiding officer. I do not quite understand why there should be a delay of more than 24 or 48 hours before the presiding officer knows that somebody has died or has resigned. In Scotland today, even though some people in England regard us as a barbarian country, we generally know what has happened within a reasonable period of time, and it seems to me to he unnecessary to make the matter any more complicated than to say that the election will take place three months after the date when the vacancy is reported to the presiding officer. That would cut out about three lines and make the clause a good deal clearer for everybody. If the Government made it perfectly clear that three months is the limit and did not add on anything to that period, then I personally should be glad. Nor should I be unhappy if they decided to make it a period of two months and allowed for an element of grace. But I think it is too much for the period to he three months, together with an element of grace.
Lord McCLUSKEY: I have already said that there is no particular magic about the period of three months. However, it is precedented and I do not propose to suggest that it should be changed. With regard to the other provision to which the noble Lord, Lord Glenkinglas, referred, if he looks at it he will see that one is not required to have a period of one month. If a vacancy does not come to the notice of the presiding officer within one month of its occurrence, the date of election shall be not later than three months after the vacancy comes to his notice. Therefore one would expect an election or a by-election to be held within three months of a vacancy. This provision is intended to catch the unexpected situation where a vacancy, perhaps during a vacation or for some other reason of that kind, does not come immediately to the notice of the presiding officer.
Lord GLENKINGLAS: I accept that a delay of a day or two might be possible,

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but if a Member of the Assembly is away on holiday and dies, surely somebody will tell the presiding officer that he has died. It seems to me to be a little unnecessary to allow a month during which the presiding officer should be told that somebody has died.
Lord McCLUSKEY: The noble Lord is assuming that people die and are known to have died on the day that they die. However, a person might go sailing and be missing, or he might go climbing or hill-walking and be missing, and it may be some time before it is known that he has died. Then it is established subsequently that he has been dead for several weeks. One is therefore providing for that kind of situation. I do not think that the wording is unnecessarily complicated.
Clause 5, as amended, agreed to.
Clause 6 [First meeting of Assembly]:
On Question, Whether Clause 6 shall stand part of the Bill?
4.26 p.m.
Lord CAMPBELL of CROY: Clause 6 is very short, consisting of two or three lines. Therefore it is not surprising that there are no Amendments to it. It simply states that:
"The first meeting of the Assembly shall be held on such day and at such time and place as the Secretary of State may direct."
Therefore, at this stage we should be grateful for any views that the Government may have about what factors the Secretary of State would take into account. There is, first, the passage of this Bill. Then there is to be a referendum. I think it would be helpful if the noble and learned Lord could tell us whether he expects the Secretary of State to ask the Assembly to meet six months or a year after the referendum, or whether the Government have an open mind at the moment and intend to leave it open and to consider the question when the time comes.
Lord McCLUSKEY: Many decisions of this kind will fall to be taken in the light of, first, the passage of this Bill—no doubt with certain Amendments—secondly, in the light of the date of Royal Assent and, thirdly, in the light of the date of elections and the general political
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and other contexts. These are matters about which it would be impossible at this stage for me to say anything that was very precise. One envisages that if the Secretary of State were the present Secretary of State, or another of his colleagues in this Government, their anxiety would be to establish the Assembly and for it to hold its first meeting as early as may be. However, there are even questions as to the occupation of premises. For all these reasons, it is impossible to be precise at present. However, the Government's intention is that as early as may be the first meeting of the Assembly shall he held.
Lord CAMPBELL of CROY: May I thank the noble and learned Lord for what he has said. I realise that a number of "unknowns" are involved. I am grateful to the noble and learned Lord for explaining the purpose behind the clause and the latest view of the Government regarding what they would do if the referendum endorses the Bill.
Clause 6 agreed to.
Clause 7 [Procedure of Assembly]:
4.29 p.m.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 227:
Page 4, line 19, leave out first ("of") and insert ("made by").
The noble Earl said: This is virtually the same Amendment as the next Amendment, Amendment No. 65, which will be moved by my noble friend Lord Ferrers. The clause deals with the procedure of the Assembly. It states in subsection (1) that the procedure of the Assembly shall be regulated by standing orders of the Assembly. The word "of" does not mean very much. The second half of the subsection deals in particular with the directions which shall be given by the Secretary of State. My Amendment simply states that the standing orders will be made by the Assembly. That makes it quite clear who is responsible for standing orders. In my view, the Assembly should be responsible for their own standing orders. I beg to move.
Lord STRATHCONA and MOUNT ROYAL: Perhaps it would be for the

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convenience of the Committee if I were to speak to these two Amendments together because, as the noble Earl has said, they are alternatives addressed to the same point. Until the standing orders have been agreed and approved, which they obviously cannot be because there is no Assembly, the Secretary of State gives directions saying how the Assembly should conduct itself. Our Amendment was attempting to say—and indeed I think the noble Earl's Amendment was, too—that it is presumably the intention that the Assembly should produce their own standing orders, and that nobody else should produce them, once they have got under way. it will not be the Secretary of State, it will not be the Scottish Office and it will not be Parliament, but it will be the Assembly. I think we would agree with the noble Earl that the Bill should say so, but it does not say so and we hope that one or other of these Amendments makes it clear beyond a peradventure.
Lord McCLUSKEY: I am advised, and I would agree respectfully with the advice, that the effect of these Amendments is to seek to procure something that is already achieved by the clause. Any elected body with legislative or executive functions needs to regulate its internal procedure, and I think the movers of the Amendment acknowledge that. The conventional method is to have standing orders. Because they are so essential the power to make them could be regarded as inherent, but legislative practice, especially, for example, in local government or any other subordinate body of that kind, has been to have express provision empowering the making of standing orders. So the first provision of Clause 7 is designed to ensure that there is no doubt about the Assembly's competence to make standing orders and not, as the Amendment seems to imply, to cast doubt on who is entitled to make such permanent standing orders.
Perhaps I may put it this way. Plainly no one else can make standing orders for the Assembly. If I choose to do it or the Wholesale Co-operative Society chooses to produce a set of standing orders,they would simply have no validity at all. Plainly no one else can make standing orders for the Assembly other than the Assembly itself, or, having regard to the terms of this clause, the Secretary of State can give
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directions. It is plainly in the clause as drafted that the standing orders of the Assembly will be made by the Assembly. It is simply a drafting point and I invite noble Lords to accept my assurance on this and my advice on it, and not to press this Amendment or the subsequent Amendment.
The Earl of SELKIRK: I do not intend to press this Amendment, but I do not agree that it is inherent. Quite clearly it is not inherent because it already says in the clause that the Secretary of State will give directions. That is clearly possible and could be done. On the other hand, if the noble Lord assures me that the Assembly or the Convention, or whatever one cares to call it, will make their own orders, then I will not press this Amendment. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 65 not moved.] Clause 7 agreed to.
Clause 8 [Disqualification for membership of Assembly]:
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 66:
Page 4, line 31, at end insert —
("( ) he holds office of profit under the Crown as defined under subsection 1(1)(f) of the Act of 1975; or")
The noble Viscount said: It is nice to have reached the stage where I may intervene in this legislation. The subject of Clause 8 of course is disqualification from membership of the Assembly and the drafting of subsection (1) is rather different from the way in which one is used to seeing disqualification legislation drafted. We are, of course, at one with the position in relation to membership of another place in that the same categories of people will be disqualified from the Assembly as are disqualified from membership of another place so far as paragraphs (a) to (e) of Section 1(1) of the House of Commons Disqualification Act is concerned: (a) refers to members of the Judiciary, (b) refers to members of the Civil Service, (c) refers to members of the Armed Forces, (d) refers to the Police and (e) refers to members of foreign Legislatures outside the Commonwealth, and

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here we are on all fours in Scotland as it is proposed, with what we have in Great Britain.
I go further than saying "in Great Britain", because in Northern Ireland we had in 1975 legislation for disqualification from the then Northern Irish Assembly, and I should have thought that if one wanted any parallel against which to judge the Scottish Assembly most people would agree that the Northern Irish Assembly or the Northern Irish Legislature was perhaps a better parallel than local authorities. The Northern Irish Disqualification Act of 1975 took exactly the same form as the House of Commons Disqualificaton Act of the same year, not surprisingly. What we have here with the Scottish Assembly is a difference in that the immense and ever-growing list of offices of profit under the Crown (if I may use that short phrase) which are brought in by Section 1(1)(f) of the 1975 Act and the equivalent provisions in the Northern Irish measure, are not reproduced.
I think that the noble and learned Lord, Lord McCluskey, will tell me that this will be dealt with by yet another of these infernal subordinate Instruments under paragraph (c) of' subsection (1) of Clause 8. So we shall not find it in the Act but in an ever-changing array of incomprehensible Statutory Instruments which nobody can get hold of, and nobody can understand even if they can get hold of them. They are in no reference books and anyway there are no reference books in Scotland. They will not be in any of the English reference books.
Lord McCLUSKEY: Oh!
Viscount COLVILLE of CULROSS: Well, there is no "noter up" to Halsbury in Scotland and there are none of the standbys of the legal profession, so far as I know, to which the English and Welsh profession are entitled, and indeed to which they are very grateful.
So we shall have an ever-shifting position. I cannot understand why it is impossible for the Government to set out an initial list of offices of profit which will require disqualification from the Assembly. If they can do it by way of an Order in Council in due course why can they not, after all this deliberation and gestation, do it in the Bill? I suggest that it would
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be very much better if we started with the list that is in the House of Commons Disqualification Act and if the Government did not like it they could then put down Amendments to say which ones should not count, and why. I beg to move.
Lord McCLUSKEY: I am astonished to hear that there is no "noter up" to Halsbury in Scotland. I doubt whether the noble Viscount's information is accurate, but if it is accurate we are indeed impoverished and I hope he will prevail upon his noble and learned friend, who is the general editor of Halsbury, to send us one in order that we might be enriched.
Lord HAILSHAM of SAINT MARYLEBONE: The noble and learned Lord has made a slight error. I am the general editor of Halsbury's Laws of England but not of Halshury's Statutes.
Lord McCLUSKEY: Well, Halsbury's Statutes are all the poorer for that. The noble Viscount correctly divined what my answer would be, but perhaps I may elaborate upon the simple answer that an order will be made under the subsection to which he referred. The House of Commons Disqualification Act 1975 disqualifies from membership of the House of Commons persons holding the offices he mentioned, and that includes those who hold any office described in Part II or Part III of Schedule 1. These same offices have not been made grounds for disqualification from Assembly membership because the Government do not think it would be right to exclude all such persons, many of whom hold offices which would in no way conflict with membership of the Assembly.
If one looks at this vast list of offices one finds that it includes, for example, the Covent Garden Market Authority. We cannot see any particular reason why a member of the Covent Garden Market Authority should not be a member of the Scottish Assembly, if they choose to elect him; or a member of the Foreign Compensation Commission, or of the Area Electricity Board in England and Wales. So there are hundreds of bodies, certainly between 100 and 200 bodies, mentioned here, and there is no particular reason to disqualify from membership all the persons who might serve upon those. Accordingly,

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it is envisaged that the list will be drawn up and put into an order; it will be based on the application of the principles which were laid down by the Spens Committee in 1956 and which were adopted in the House of Commons Disqualification Act 1957 and consolidated in the 1975 Act. It is intended that the power will be exercised in relation to the Assembly in time for the selection of candidates for the first election.
Basically, what one sees when one looks at this great list in Schedule I is that there are a number of bodies which deal with matters which are reserved to Parliament and do not deal with any matter which is devolved. They are bodies which operate exclusively outside Scotland, and we do not think that persons who are members of those bodies should necessarily be disqualified from membership of the Assembly. Accordingly, the Government could have adopted one course and could have listed all the disqualified bodies and produced a great list like the one appearing in Schedule I. That was thought to be unnecessarily cumbersome. It is not essential that the public should be able to have instant access to these matters. What is important is that, when these bodies find themselves added to such a list by the order, anyone who joins such a body w ill, of course, be told "One of the consequences is that you cannot stand as a Member of the Assembly", as he no doubt is told at the moment that he cannot stand for membership of the House of Commons. The Government have taken the decision for those reasons, and I hope the noble Viscount will agree that it has something to commend it and will not feel obliged to press his Amendment.
4.45 p.m.
The Earl of LAUDERDALE: The noble Lord has been good enough to point out that there are anomalies if you transfer to Scotland the list of disqualifications which applies to England. I wonder whether I might ask him to address his mind to a particular and rather curious anomaly that I learned of recently. If I am correctly informed, offices of profit under the Crown include beneficed clergy of the Established Church of England, so far as Parliament is concerned. There is a curious consequence which I learned of the other day, which is that the Scottish Episcopal Church, not estab
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lished in Scotland, indeed Non-Conformist in Scotland but in communion with the Church of England, suffers an extension of that same disqualification to its own clergy. I heard recently of a particular clergyman, who has served with distinction on a local authority, who I know is most eager, if the opportunity arises, to present himself as a candidate for the Scottish Convention—because, of course, we shall change the name by the time the Bill is through. As things are, he has found out that he is already disqualified from being a candidate for Parliament, and if, therefore, the Parliamentary disqualifications apply to the Convention, to the Scottish gathering, then they will apply to him once again. Perhaps the noble Lord could find out about that and let me know. I appreciate that it is rather a recondite question to put, and it may be that he could answer it at some other time if he cannot answer it now.
Lord McCLUSKEY: I wonder whether the noble Earl has looked at Clause 9(1)(b)? Has he taken that into account, and does he want me to go further than that in answering his question?
The Earl of LAUDERDALE: The answer is surely that when we get to Clause 9(1)(b) it will seem to be a very strange provision in the Bill. Without prejudice to that, is it or is it not the case that, as things stand, a clergyman of the Scottish Episcopal Church is disqualified from standing as a candidate for Parliament, and on that ground would also be excluded from standing as a candidate for the Scottish gathering?
Lord McCLUSKEY: I shall certainly take advantage of the noble Earl's offer and pursue the question of disqualification from Parliament of these clergymen.
Viscount COLVILLE of CULROSS: I think the noble and learned Lord's answer is probably all right, except that I am a little surprised that by this time the Government still have not decided what the list is going to contain. The noble Lord suggested—at least, I think he was suggesting—that the criterion for incompatibility between holding an office of profit under the Crown and membership of the Assembly was going to be some conflict of functions. That was the only point, I fancy, in raising the Covent

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Garden Market Authority, because it plainly does not have anything to do, or very little to do, with events in Scotland. But I do not think that is the origin of disqualification; I do not think it was anything to do with a clash of functions. I think it was to do with patronage, and it originally went back to rather more corrupt days when these things had to be looked at with a great deal of care. That is not, I think, the modern criterion. But it was certainly not a matter of functions.
Parliament has always so far, I think I am right in saying, decided this upon the original legislation. If a new body is set up, and it is thought that membership of that body should count as one of the offices that disqualifies from membership of the House of Commons, it is in the Bill and Parliament can debate it. Now we are told there is going to be a list in the Order in Council and we do not know what it is; and of course the difficulty, apart from the fact that one cannot find it, is that one cannot amend it. When the list comes forward it will, under the provisions of subsection (5), be subject to positive Resolution in both Houses, but positive Resolution does not enable us to amend, and it does not enable us to consider the selection of offices which will appear in the order. In the Northern Ireland legislation, of course, the Covent Garden Market Authority did not appear, no doubt for good reason, but a number of others did, and it was an Act of Parliament and everybody could consider it We cannot amend the Order in Council.
Is it really not possible for the noble Lord to tell us at this stage what the Cabinet Office or the Privy Council Office has decided is the list of offices? Have they not made up their minds yet? They have had enough time. This cannot be a matter which has arisen for the first time on this Bill; it must have arisen on the Scotland and Wales Bill. Why is it that they cannot tell us now? It would seem to be perfectly easy to put it into the Bill and then we could look at it. Is the noble Lord saying that they do not yet know?
Lord McCLUSKEY: The noble Viscount asked me these questions in such a way that I find it harsh to answer them in the way that I intend to answer them. I
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should have thought it was blindingly obvious that it would be premature for the Government to spend time and use the time of draftsmen and many others preparing these lists in advance of knowing what Parliament finally decides the devolved functions shall be. Although I accept entirely that the question of patronage may have been at the root of this disqualification early on, one must concede, surely, nowadays that the matter of function is also relevant. If a person is a member of a body, and functions relating to that body are to be devolved, then plainly he ought not to be allowed to participate in the work of the Assembly. Of course, until we see the final shape of Schedule 10 and Schedule 11 to the Bill it would be premature to take the valuable and expensive time of draftsmen and other civil servants and members of these bodies to draw up these lists.
I have said that we will follow the recommendations of the Spens Committee. I should also say, in relation to the order-making power, I accept the point that one cannot amend the order; indeed I used it myself yesterday in another argument. But the noble Viscount will he aware from looking at the 1975 Act that when that Act was passed, and a list of some 200 bodies was set out in Schedule 1, Section 5 of the Act said:
"If at any time it is resolved by the House of Commons that Schedule I to this Act be amended, whether by the addition or omission …",
then that may be done by Order in Council. So there is precedent for using this kind of procedure. Provided the Government, in making the order, follow the recommendations of the body then no doubt there will be no difficulty in passing the order through Parliament. It would be difficult to justify putting that into the Bill in every case when that is not done in the case of new offices under the 1975 Act.
Viscount COLVILLE of CULROSS: I shall not pursue the matter today. Perhaps the best thing for me to do is to listen with rapt attention to the discussions on Schedule 10 and the other function Schedules and produce my own list for Third Reading and put it down as an Amendment at that stage. Then we can discuss whether we have the list right. Meanwhile, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.52 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 232:
Page 4, line 36, leave out lines 36 to 42.
The noble Lord said: I beg to move Amendment No. 232. This, as I am sure the noble and learned Lord has recognised, is a probing Amendment to discover what the effect of the subsection is and why the Government have put these terms in the Bill.
The first question that I should like to ask the noble and learned Lord, Lord McCluskey, is this: How does this compare with the equivalent disqualifications for membership of the House of Commons or local government in Scotland? The effect of the subsection is that if someone has been convicted within a certain immediate past period, which is at least five years, but could be a little more, of an offence which warranted at least three months' imprisonment without the option of a fine, then he is disqualified. Clearly the intention is that somebody who has been convicted of an offence of a certain category—not a minor offence—within a certain period, should not be eligible for membership. It may be that the Government have simply taken this provision from local government disqualification rules. I do not know and that is my first question. It certainly does not look exactly the same as the equivalent disqualification for the House of Commons. We should be grateful for anything which the noble and learned Lord would like to add to explain why this provision has been put in the Bill. I certainly do not disagree with the principle that there should be some disqualification on these grounds.
The other matter is how this conforms with the legislaton on rehabilitation of offenders. The legislation on that subject allows convictions of certain categories to be expunged from the records in certain circumstances and after a certain time. It means that someone who has committed an offence in the past need not after a certain time disclose it, and can forget all about it. It cannot be used in a way which could cause him to lose jobs or perhaps find it difficult to get employment. It is part of the legislation which helps someone to be rehabilitated in the community if he is, to use a colloquialism,
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going straight and has gone straight for some time.
I understand that there are provisions in the legislation requiring disclosure of convictions where membership of the House of Commons is concerned. I may be wrong, but, if so, the noble and learned Lord will no doubt correct me. I understand that there are specific exceptions, so that an offence, which in ordinary circumstances, need not be disclosed, must be disclosed where membership of the other place is concerned. If that is so, then it is all the more relevant that we should be informed as to whether it is the Government's intention that there should be any similar exemption in regard to the new Assembly.
If the noble and learned Lord would prefer to give a considered reply—if this point has not so far arisen—in later stages of the Bill, I shall, of course, accept that course. However, it seems to me that this is the appropriate moment to raise this matter.
Lord McCLUSKEY: So far as the second point is concerned, I think that it deserves a considered reply and I shall be glad to take advantage of the kind offer that the noble Lord has made and find an opportunity on a later occasion to give that considered reply.
As regards the first point which the noble Lord has raised, the House of Commons claims, and has the right, to expel any person who is unfit for membership—for example, if he suffers a conviction for a very serious offence. That is an example of the power of that House to regulate its own constitution. However, the Assembly will not have the powers and privileges of the Commons. The Bill must, therefore, make specific provision. The closest analogy is the one that the noble Lord thought that I might offer—the analogy with local government. The provision is contained in Section 31(1)(c) of the Local Government (Scotland) Act 1973. Indeed, we have chosen exactly the same wording for this particular provision and it is the model for Clause 8(1)(d). Therefore, I think that I can justify it upon that ground. It simply gives the Assembly a power which the House of Commons has and which local authorities also have. In fact, it is not so much a power—and perhaps that is the

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wrong word to use—as an ability to introduce the kind of disqualification which the House of Commons can. if it chooses, impose.
Lord TANLAW>: To carry this matter one stage further, I should like the noble and learned Lord to give me some clarification of the phrase "any offence". Does that cover causes of imprisonment such as conscientious objection or, for example, the case of a person who has committed an offence, who refuses to pay the fine and who insists, for reasons of conscience or belief to take the gaol sentence? Perhaps the noble and learned Lord can relieve my mind by explaining whether "any offence" also includes those offences that cause imprisonment for conscience's sake.Such information would be most helpful and I shall be interested to hear the noble and learned Lord's response.
Lord McCLUSKEY: I am looking at the wording of the clause itself. Clause 8(1)(d) mentions conviction for "any offence". I suppose that one would have to find an offence. I do not know whether, at present, there is an offence in relation to conscientious objection. I do not know what the noble Lord has in mind.
Lord TANLAW: I, too, cannot think of an offence, but I had in mind the equivalent of tearing up a draft card, a ration card or something like that. At present—especially in view of the fact that I am a non-lawyer—such an offence does not spring to mind. However, I am thinking of offences in connection with tearing up an identity card or a draft card or as regards conscientious objection.
The Earl of SELKIRK: I suppose that refusing to pay maintenance is the sort of thing the noble Lord has in mind.
Lord TANLAW: Yes. I should like to thank the noble Earl.
Viscount COLVILLE of CULROSS: With respect, I think that we are making very heavy weather of this matter.
Lord McCLUSKEY: I did not give way to the noble Viscount. I wish to complete what I have to say. I, too,
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think that we are making heavy weather of this matter and we are agreed about that. The wording of the clause is:
"convicted … of any offence".
When one looks at the question of sentence, it says:
"a sentence of imprisonment … for a period of not less than three months without the option of a fine ".
I think that that answers the other point; the answers are contained in the wordng of the clause.
Lord LLOYD of KILGERRAN: Far be it from me to intervene at this stage in matters relating to Scotland, but may I ask, for information purposes, whether there is any definition of an "offence"? That might clarify the position, because I have a great deal of sympathy with the point raised by my noble friend Lord Tanlaw in this matter.
Lord McCLUSKEY: The whole phrase is, "convicted of any offence". One must be convicted. Surely that gives the wording rather more meaning than just looking at the word "offence" on its own. The Bill says:
"convicted … of any offence and has had passed on him a sentence of imprisonment".
No doubt the noble Viscount, Lord Colville of Culross, will correct me if I am wrong, but I cannot think of any tribunal in the United Kingdom, the Channel Islands, the Isle of Man or the Irish Republic—though I do not claim expertise in relation to the Irish Republic—which has the competence to convict a person of an offence and pass upon him a sentence of imprisonment of three months without the option of a fine, unless it be a court of criminal law.
Lord LLOYD of KILGERRAN: I did not make myself clear. If an offence is committed and a man is given a suspended sentence, will that be a difficulty?
Lord McCLUSKEY: That is also covered in the clause, because in lines 40 and 41 in brackets are the words "whether suspended or not".
Lord LLOYD of KILGERRAN: I am obliged to the noble and learned Lord.
Viscount COLVILLE of CULROSS: I should like to make one comment on

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this. The noble Lord, Lord Lloyd of Kilgerran, asked: what is an offence? It is perfectly plain. I have no doubt that there is a selection of common law offences in Scotland. But the vast majority of offences will be matters which Scottish Acts of Parliament, or United Kingdom Acts of Parliament which apply to Scotland, say are an offence, and they say it in terms in the Act. It is those matters that are being dealt with in this paragraph.
Secondly, I should have thought that it was absolutely in order to deal with it in the way in which the Bill deals with it, because courts do not lightly pass sentences of imprisonment. That is one of the things which they are always very careful about. If they find that an offence has been committed and they think it is sufficiently serious an offence on which to pass a sentence of imprisonment, I do not greatly mind whether the offence is tearing up a draft card or anything else, because they would have considered the offence to be sufficiently serious to impose the very severe sentence of a term of imprisonment. In those circumstances, I should have thought that the Government were absolutely justified in the way in which they have drafted the subsection.
Lord LLOYD of KILGERRAN: I should like to express my gratitude to the noble Viscount for his clarification of this matter of Scottish law. I should also like to congratulate him on recently becoming a Queen's Counsel.
The Earl of SELKIRK: This clause is entirely confined to what might broadly be called the United Kingdom and the islands surrounding it. Let us suppose that a man with a splendid record of crime and deception in, say, California or New South Wales enters the House—and this can happen (in a minor way I have had it happen to myself)—what recourse does the Assembly, the Convention or what you will, have? The noble and learned Lord, Lord McCluskey, has told us that the House of Commons can expel a Member with a splendid record of this sort. So far as I can see, there will he no remedy whatever. This proposal of three months' imprisonment without the option of a fine does not exactly condemn a man to eternal damnation. Would there be any remedy whatever to someone exercising or being capable
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of exercising a major act of deception? He may have served a sentence for murder or some other offence in some obscure country. Somehow he has insinuated himself into an unsuspecting constituency. I only put the point to the noble and learned Lord; he may not want to answer that. But if he draws this phrase as closely as that for the United Kingdom, it seems to me that what happens outside should not be wholly excluded.
5.5 p.m.
Lord CAMPBELL of CROY: While the noble and learned Lord is considering that point, what my noble friend Lord Selkirk has raised also raises the question in some of our minds as to why the Irish Republic is included here. I am sure that there is a simple answer. We know that many citizens of the Irish Republic live on this side of the Irish Channel. However, I should be grateful if the noble and learned Lord could tell us why the Irish Republic is included.
Questions have been asked about convictions. I had read this subsection exactly as the noble and learned Lord, Lord McCluskey, and my noble friend Lord Colville of Culross stated it. That is to say, it tries to set out the degree of severity of the offence for which a conviction has been passed; a conviction without the option of a fine draws what I would call the severity line. The kind of conviction which involved imprisonment without the option of a fine meant that an offence had to be of a certain severity and not a minor one.
The noble and learned Lord has given the answer which I sought to the main question, which is that this is modelled on the rules for local government in Scotland. He said that he would like to consider my question about the effect of the rehabilitation of offenders legislation. Therefore, I shall hope to hear an answer to that during the later stages of the Bill. I should be grateful if the noble and learned Lord could let me know when he proposes to answer that question, so that I can be sure of being present. I think it would be better if he answered it in your Lordships' Committee rather than simply write to me because I know that a number of noble Lords in various parts of the Committee are interested in this point.

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The noble and learned Lord may now be ready to answer the question posed by my noble friend.
Lord McCLUSKEY: First, I should like to take the point raised by the noble Earl, Lord Selkirk, about villains who have distinguished themselves in crime but not within these Islands. There is no provision in the Bill which enables the Assembly to expel a man on the ground that he was a villain in Bolivia, or wherever. However, this is surely a matter for the political Parties themselves. Before they select a candidate either to go on the priority list or to fight as the constituency Member, they should satisfy themselves as to his background. I can also point to the provision in the Local Government Act, which does not seem to have given rise to that kind of difficulty. Having regard to the real check that one would expect within our political system, I am satisfied that the Bill as it stands is satisfactory.
Lord MACKIE of BENSHIE: I trust that the noble and learned Lord is not ruling out the possibility of independent Members being elected to the Assembly?
Lord McCLUSKEY: No, I was not aware that I was doing anything of the kind. However, I should have thought that if a person sought membership of the Assembly as an independent Member, he would be very unlikely to win the seat unless he was well known to the electorate. One would have thought that if one was well enough known to the electorate to be elected as a constituency Member—which is where one would go in under this system—then it is hardly likely that a villainous past would have escaped the attention of those who know one. Again, it is a practical matter.
As regards the inclusion of the Irish Republic, again I point to the precedent of the Local Government Act. However, I think that the noble Lord, Lord Campbell of Croy, will recognise that the further abroad one goes, as it were, the more likely one is to encounter something which is an offence in a country abroad which would not he an offence here. However, we are reasonably familiar with the system in the Irish Republic and its antecedents. We are satisfied that when a person has been convicted of an offence which attracts
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this kind of penalty, it is sufficiently cognate with a similar offence here to attract the disqualification. So that is the reason for including the Irish Republic.
Lord CAMPBELL of CROY: I think that this has been a useful short debate. I am grateful—and I am sure that other noble Lords are too—to the noble and learned Lord for having replied to the questions to which he could give us answers straight away. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.10 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 233.
Page 4 line 42, at end insert—
"( ) he is a Member of the House of Commons".
The noble Lord said: I beg to move Amendment No. 233, which would add membership of the House of Commons to the disqualifications. Again, this is simply a probing Amendment to give the Government notice that we wish to hear their views on the question of Members having a dual role: whether it is practical, or advisable, that a Member of this new Assembly should also he a Member of the House of Commons. It is clearly not ruled out, so far as I can see, in the Bill as it stands. Without this Amendment, it would be perfectly possible for someone to be a Member of the other place, a Member of the Assembly, and also a Member of the European Parliament. That is the reason for the next Amendment—Amendment No. 234—which I think it would be convenient to consider separately.
One of the arguments that has been used by the Government in favour of the proposals in this Bill is that Members of Parliament at present are greatly occupied with business at Westminster and that there is a case for a separate elected body meeting in Edinburgh. If that principle is accepted completely and logically, then of course there would not be any question of a dual role and of a single person performing both those tasks. This Amendment is tabled in order to ask the Government to explain to us their views and why they have decided not to place any bar upon membership of the Assembly if a person is a Member of the House of Commons. I beg to move.
Baroness STEDMAN: May an English person presume to come to the Dispatch Box to speak on this Scottish Bill? I was hoping that the noble Lord was going to deal with the next Amendment as well, for it is in the same line and the same sort of arguments apply to it on the question of membership of Parliament and membership of the European Parliament.
Lord CAMPBELL of CROY: I said that I hoped that we could deal with these two separately.
Baroness STEDMAN: At the risk of boring the Committee by perhaps using the same argument in both instances, may I say that the Amendment which the noble Lord is dealing with at the moment is the one to disqualify Members of the House of Commons from serving as Members of the Scottish Assembly. I can understand that there is perhaps a feeling in some places that there might be a potential conflict of loyalty and that it might be impracticable to participate in the work of both the Assembly and the House of Commons. The Government see no reason to suppose that there is going to be any conflict of loyalty in any very serious form.
We accept that, from time to time, there may be occasions when differences will arise between the Government and the devolved Administration, but we do not feel that they are likely to involve an individual Member in any significant conflict of loyalty. We think that to impose a separation of Members between Parliament and the Assembly is going to sit rather oddly alongside the Government's concern, and indeed the concern that has been expressed in this House from time to time, to maintain the political unity of the United Kingdom.
It will depend to a great extent on the respective workloads of the Assembly and of Parliament, and how what one might loosely term the working days of each body will affect or relate to each other. Certainly, I accept that dual membership would involve a considerable burden on the individual, but this is surely something which the electors themselves and, indeed, the political Parties will take care of. We really do not see the need to put this into the Bill.
The Duke of ATHOLL: I should like to support my noble friend's Amendment. I have always hoped that membership of the House of Commons would remain a part-time affair, and I think that it still is, to a large extent. Therefore, I am not worried about the workload aspect, although I fully recognise the fact that you would need to be almost superhuman to do your job in both an Assembly in Edinburgh and the House of Commons here. However, I think that Members of another place often live in an unreal world. What we want is to enable them to get out and see the world as it really is. If they spend their time commuting between London and Edinburgh and attending a highly political Assembly in Edinburgh and an equally highly political House of Commons down here, I cannot see that they will be able to understand exactly what is happening in the country.
I hope that, if the Government feel unable to accept an Amendment on the lines of that of my noble friend, it will at least be the case that the political Parties will not adopt candidates who are already Members of another place or of the Assembly to stand for the opposite place. I think that that would be a disaster. I should like to see it written into the Bill, but I recognise the Government's argument that we want to keep the unity of the country in the foreground and that therefore it may be undesirable to prohibit this. I personally think I would rather prohibit it and do something that might slightly affect the unity of the country.
Viscount MASSEREENE and FERRARD: Am I not right in thinking that the last time we had a Parliament in the North of Ireland—and I am not referring to Stormont: I think it was called the Northern Ireland Assembly—one could be a Member of the House of Commons and a Member of that Assembly at the same time?
A noble Lord: Yes.
Lord PONSONBY of SHULBREDE: I would regard it as a retrograde step if this particular Amendment were carried because it might be the thin end of the wedge which would lead future legislators to suggest that Members of the House of Commons should be debarred from

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becoming members of our great county authorities in England such as the Greater London Council, for example, which in fact has to look after far more people than there are in Scotland.
Baroness ELLIOT of HARWOOD: What would happen supposing you have a Member of the House of Commons who was also a Member of the Assembly and the elections, either for Westminster or Edinburgh, were on quite different dates and at quite different times? Supposing that the person was not elected to the Assembly, what would happen then? Can he go on being a Member of the House of Commons? I suppose he can. But then what will happen if he wants to stand again, or he is not elected? I can see a muddle between the dates of elections and the times of the Parliaments. If they do not coincide, I cannot see how one would be able to arrange this at all. I may be quite wrong. I should like to hear what the noble Baroness feels.
Lord HUGHES: From time to time in a Bill of this kind matters arise which would be much better dealt with in the other place. It seems to me that there is a certain anomaly if we are saying that Members of the House of Commons cannot be Members of the Assembly when we are not seeking to prevent Peers from becoming Members of the Assembly.
5.18 p.m.
Baroness STEDMAN: I am grateful for my noble friend's comments on the last point. I think that anyone who tried to fight an election for both the Assembly and the House of Parliament within a short space of time would be rather more superhuman than anyone we have met up to now if he survived the ravages of two election campaigns. If he is defeated in one there is nothing to prevent him, if he is successful there, from sitting in the other body. I should have thought that, if we could find a few of these superhuman people, there would perhaps be advantages initially in having a few people with Parliamentary experience sitting in the Assembly to, as it were, "leaven" it to begin with.
Certainly, the Members of Parliament I know do not live in a rarefied atmosphere in Westminster, not knowing what is going
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on in the world. The ones I know, whether they be so-called full-time or part-time Members of Parliament, seem to spend a lot of time around their constituencies and among their constituents. I am sure that the majority of them know a good deal about what is going on. The real test is going to be whether the electors to the Assembly and the Parliamentary constituencies are satisfied that one man can do proper service to the electors in both assemblies, and also, of course, whether the political Parties involved are likely to accept that they perhaps have these superhuman people who are eligible to fight in both the Assemblies. It would be a great pity if we put an unnecessary limitation both on those wishing to stand for the elections and on those selecting the candidates for the elections.
Lord CAMPBELL of CROY: First. may I say that from this Bench we very much welcome the participation of the noble Baroness in our Committee discussions. We regard this very much as a United Kingdom Bill and not as simply a Scottish Bill, because it affects every part of Britain to a great extent.
This Amendment was put down, as I explained, in order to give the Government an opportunity of telling us what they thought about the question of a dual role and the single person being a Member of the Westminster Parliament and the new Assembly. I would say to the noble Lord, Lord Hughes, who raised a very valid point, that we have felt obliged to raise some of these points in this Committee because the guillotine prevented discussion even of domestic matters in another place. Certainly I have no wish to try to intervene in the affairs of another place.
The noble Baroness said that the experience gained at Westminster would be useful if and when an Assembly were set up in Scotland. I entirely agree with that. I hope that a number of former Members of another place will be among the candidates in the first election because that experience may be brought to the Edinburgh Assembly without dual membership. Those who have served in the House of Commons may, if they are retiring, take their experience to the new Assembly without continuing their membership of the other place.

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I agree with the Government that it would be best not to put a restricting measure like this into the Bill. As I explained, the Amendment was put down in order that the subject might be discussed. My noble friend the Duke of Atholl pointed out that someone who had a dual role like this would find his time exceedingly full. There is no doubt that if he was doing Committee work in both places and travelling to and fro constantly—those of us who travel between Scotland and Westminster know only too well how much time is taken by that—the task would be a very difficult one. I am not pressing this Amendment. I have no intention of writing this into the Bill. I should like to express the opinion that it would be most difficult for someone to do both jobs. I would hope that only a very few would try to do it, and that it would be in exceptional or special cases.
Referring to the point raised by the noble Lord, Lord Ponsonby of Shulbrede, certainly I have no intention of prejudicing the position of members of very large authorities in England. I regarded this point as a matter affecting the new Assembly in Scotland. I would not wish any decision there to be a precedent for what might happen in the Greater London Council or elsewhere.
This has been a short and useful discussion. I am grateful to have heard the Government's view. I would only end by saying that I do not think my Amendment should be in the Bill. I do not think that this should be written into the Bill. I think it would most be inadvisable for there to be Members carrying out both roles. if there are, they should be very few in number. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.25 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 234:
Page 4, line 42, at end insert—
("( ) he is a Member of the Assembly of the European Communities").
The noble Lord said: This Amendment, if it were accepted, would mean that someone who was a Member of the European Parliament—the Assembly of the European Communities, as it is officially known—would not be eligible
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for the Assembly in Edinburgh. Because from next year the European Parliament will be a directly-elected body, it is expected to be much more demanding upon the time of its Members.
I think that most people in this country regard the development of direct elections as producing a new kind of Parliament in Europe, to which those who are Members will have to regard themselves as having their first allegiance. Although the Parliament meets in Luxembourg and Strasbourg, the Committees meet in Brussels, Rome and other places. If the Committee work that exists at present is extended, as I am sure it will be, that again will be a job that will take up a great deal of time of the British Members.
I think it would be difficult for a Member of the European Parliament to be available as much as he or she ought to be for a new Assembly in Edinburgh. Again, I do not press this Amendment. I would give the Government an opportunity to give their views on the matter. I suspect, from what the noble Baroness said, that they are likely to be much the same as they were on the last Amendment.
Baroness STEDMAN: Yes, my views are exactly the same as on the last Amendment. Certainly, speaking personally, I would never advise anyone to put themselves up for one, two or three of these bodies at any one time. I think that they would be taking on an absolutely impossible task. But surely this, again, is something that we can leave to the good sense of the individual. Over the past few years, while some of our Members from this House and the other place have been going to Europe, we have seen the wealth of experience that they have been able to bring to bear which they have picked up in this House and in the other place, and which I am sure has benefited Europe. There may still be just one or two people who might be willing to take on this additional burden, but we would not want to see it written into the Bill that they could not take it on if they wanted to. However, I think that such people will be very few indeed in number.
The Earl of LAUDERDALE: I should like to support the views of the noble Baroness on this matter. While it is quite true that a dual mandate is a very

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heavy burden to bear—let alone a treble mandate, if there were such—there is good reason for Members of this Parliament to be apprehensive about its relationship with the European Parliament as it grows up. Indeed, it must be well known to some noble Lords, at any rate, that this is a matter which the Select Committee scrutinising European events is watching very closely. We have a Sub-Committee actually working on the problem of relations between the Parliament at Westminster and the Parliament of the European Community.
One matter that has become quite clear is that, however burdensome the dual mandate may be—and it is killing, in a sense —none the less it does provide a link. As the years go on we have every reason to be apprehensive lest the Parliament of Westminster and the Parliament in Strasbourg drift apart. if we write into this Bill a provision making it impossible for Members of the Scottish Convention to belong also to the European Assembly or Parliament, we shall prevent a link that might otherwise exist. On that ground alone I feel that the noble Baroness is absolutely correct. I would ask my noble friend not to press this Amendment. I believe that it is misconceived.
Lord TANLAW: Is there not a possibility that a Member of the House of Commons or a Member of the Assembly of the European Communities may wish to retire, due to the burdens of office, from either of these Parliaments and, at the same time, wish to take up a new job in the Assembly? Therefore there will be a conflict of periods of time. This will allow the Member to retire from one and, at the same time, be eligible for the Assembly. Therefore I strongly support the noble Baroness. I think that for those reasons, as well as for the reasons given by the noble Earl, it is very sensible that the Bill should remain as it is.
Lord CAMPBELL of CROY: I am glad again that this has given the Government the opportunity to express their views and also for noble Lords to express theirs. The fact that my noble friend Lord Lauderdale gave us his views, immediately made me realise that there are exceptions to every rule. If there is one person in the world whom I think, as
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a Scot, could in fact carry out the task and be a member of all three bodies at the same time, it is my noble friend. Although he said it would be a killing job, I am not surprised he admitted that it would be possible, and of course there could be exceptions. The sense of the Committee is that it would be very difficult for someone to try to do the two jobs, but that certainly should not be ruled out in the Bill. I am grateful to the noble Baroness for having given the Government's view, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.30 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 235:
Page 5, line 1, leave out ("(2) A person who") and insert ("(e) he").
The noble Earl said: I join my noble friend Lord Campbell of Croy in welcoming the noble Baroness, Lady Stedman, as part of the team on the Government Front Bench. I hope that bodes well in terms of the Government's accepting some of the very constructive Amendments which we are putting forward, of which this is one. I feel some slight embarrassment, though, that one of the first Amendments to which she must address her mind is this one, which would leave out "A person who" and would insert "he". I assure her that this is not an affront to the Equal Opportunities Commission. Indeed, I hope that her intervention in the debate immediately prior to this does not in any way insinuate a rejection of my Amendment. In fact, Amendments Nos. 235, 236 and 237 can be discussed together and it might be helpful if I were to explain the drafting of them because it may at first sight appear somewhat complicated.
In Clause 8(1) there is delineated under paragraphs (a), (b), (c) and (d) those people who are disqualified for membership of the Assembly. My first Amendment would insert another sub-paragraph, (e), and would remove the second subsection. The object of the Amendment is simple. As the Bill stands, a person who is a lord-lieutenant of any county can stand for and sit in the Assembly, provided he does not sit in the Assembly for the area for which he is lord-lieutenant. Of course, lords-lieutenant act on behalf of Her Majesty in

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the exercise of their office and it is convention—indeed, I think it is more than convention—that they do not involve themselves in politics. The object of my Amendments is that lords-lieutenant should not take part in the Assembly.
Being an accommodating kind of fellow, I have given the noble Baroness two options. Amendment No. 236 says that lords-lieutentant may not take part in the Assembly if they are lords-lieutenant in Scotland, though that would I think enable a lord-lieutenant of, say, Norfolk to sit in the Assembly for Scotland. It is desirable, I should have thought, that lords-lieutenant for any part of the United Kingdom should not take part in the Assembly, and if the noble Baroness were to concede that point, then I have no doubt she would be happy to accept my Amendment No. 237. The choice is open to her, but I hope she will accept the point that it is undesirable for lords-lieutenant, who act on behalf of Her Majesty, to involve themselves in politics. In the same way as they are not allowed to involve themselves in politics within a county, and I think they are not allowed to involve themselves in politics in Parliament other than on the Cross-Benches in your Lordships' House, I suggest it would be desirable that they should not involve themselves in the Assembly.
The Duke of ATHOLL: It might be for the convenience of the Committee if I spoke to an Amendment on this subject which stands in my name. It deals with exactly the same point, though I tabled it before my noble friends tabled theirs and I admit that I much prefer their wording to mine: my way was, I think, a more idle way of doing it, and that is, I am afraid, why I adopted it.
Following on what my noble friend Lord Ferrers said, in the Bill the Government have admitted that it is unsuitable for a lord-lieutenant to engage in the hustings in the area in which he is lord-lieutenant. However, with modern communications, with people appearing on the various television programmes every night, I think it would be unsuitable for a lord-lieutenant to engage in the hustings anywhere in this country, and to that extent I support my noble friend's last Amendment to leave out "Scotland" and insert "the United Kingdom". I am prepared to concede that there could
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perhaps be a case for the lord-lieutenant for an English county being allowed to stand for the Assembly in Scotland on the grounds described by the noble Baroness, but not on any other grounds.
I recognise that there have been people in the past who have undertaken the jobs of lord-lieutenant and Member of Parliament for their particular lieutenancy and that they have done so satisfactorily. Lord Thurso's father I believe did so for a considerable time. Perhaps the noble Viscount would tell us how he did it and how he engaged in the hustings—or was he always returned unopposed? I suspect he may have been in that far northern constituency. But in modern times I think it is unsuitable and I hope the Government will accept the Amendment.
Lord HAWKE: The noble Baroness, Lady Stedman, will never have a better chance of accepting an Amendment with a clear conscience, even perhaps in opposition to the instructions she may have on the paper which is before her. Now is her opportunity.
The Earl of KINTORE: It is not absolutely true that lords-lieutenant do not engage in politics. The four Lord Provosts of the Four Cities are elected and play a very prominent part in politics. T feel therefore that a provision is needed to cover that sort of point.
Lord HUGHES: A number of Peers are lords-lieutenant, but I have not observed that they always sit on the Cross-Benches. I do not think the Amendment which relates to the United Kingdom reads very happily because, if it were accepted, the provision would say:
"A person who holds office as lord-lieutenant or lieutenant for any region, islands area or district in the United Kingdom …".
That would not exclude all those in English authorities because there are no regional councils and there are no islands areas, but "district councils" does not, as I understand it, cover the whole of English local government. We would have the situation, if the second Amendment were accepted, that some lords-lieutenant in England would still be eligible. On the first one, the point would remain that the Scots would be out and the English in their entirety could be in. In any event, I should not have thought that was a

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risk which should keep us too long at night from our sleep. I do not expect that the English lieutenants are bursting for the opportunity to become Members of the Scottish Assembly. As a matter of fact, I doubt very much whether those who hold such office in Scotland are equally animated by a desire to get into the new body.
Viscount THURSO: As my father has been mentioned, perhaps I might make a brief comment. What the noble Duke, the Duke of Atholl, said is quite right; my father became lord lieutenant for the County of Caithness in 1919, stood for Parliament and, after a violently fought election, which included the putting of a beehive in his opponent's bedroom and things of that sort—they were not put there by him, I might add, but by his supporters —he was elected to the other place. He remained the Member for Caithness and Sutherland and fought a number of elections; there was only one occasion when he was returned unopposed. In one election he managed to make both the Tories and Socialists lose their deposits, but eventually he lost a very narrowly fought election by just a few votes. He stood again and lost again, yet still remained lord lieutenant for the County of Caithness.
He then came to your Lordships' House; he accepted the title and Peerage in order to come here to lead the Liberal Party on these Benches. Unfortunately he was prevented by illness from leading the Liberal Party, but he recovered from his illness and, still lord lieutenant, he came and sat in your Lordships' House on the Liberal Benches and took part in debates. I have no hesitation in saying that he managed to do all of this, I am quite certain, to the satisfaction of his late Majesty the King and Her Majesty the Queen, as well as to the satisfaction of the people of the district and county of Caithness. It is a perfectly possible thing to do.
I must confess that I am feeling terribly guilty because I am in fact Her Majesty's Lord Lieutenant to the District of Caithness, and here I am sitting on some Party Benches, taking part in the hurly-burly of your Lordships' debate. I have never felt that I was in some way doing something terribly dishonest or despicable,
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or something which in some way brought Her Majesty, or the office of the lord lieutenant, into disrepute. No, I feel that by honestly standing for the principles in which I believe, provided I do not mix these up within the lieutenancy which it is my responsibility to head, and provided I do not bring politics into my lieutenancy, I can only try to enhance my own reputation and through it that of my lieutenancy. This is my earnest effort and endeavour, and it would, I am sure, be the earnest effort and endeavour of every one of Her Majesty's lords lieutenant who thought of standing for a county council—for which indeed they do stand, and for that matter, sit on—or for a district council, or for an Assembly or any other political or administrative office which is open to them. I hope that your Lordships will not make me feel even worse by saying that it is impossible to separate one's duties in this connection.
The Earl of DUNDEE: As I happened to be a Member of the House of Commons for 14 years during which period the distinguished father of the noble Viscount, Lord Thurso, was also a Member of the House, as well as being Lord Lieutenant of Caithness, I hope your Lordships will allow me to say that his dual capacity was thoroughly admired and approved of, so far as I remember, by everybody in the oher place, in which he played a very distinguished part indeed. He was Secretary of State for Scotland, in spite of being Lord Lieutenant for Caithness and all the other things, in the National Government of 1931.
I also remember in that connection the leader of what were called the "Simon Liberals", Sir John Simon. I remember after the Ottawa Conference, when it was decided at last to have Imperial Preference, there was a tremendous row about Imperial Preference between Simon and Sinclair Liberals, and it was decided that Ministers on the Front Bench, in these special circumstances, would be allowed to argue against each other. Both Sir John Simon and Sir Archibald Sinclair (as he was then) made rather strong speeches, tearing to pieces the arguments of each other and each occasionally interrupting the other on the Government Front Bench. It was a rather unique and interesting historical spectacle. Winston Churchill was not a member of the

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Government at that time. He sat below the Gangway, below the Government Bench, and he got up and observed that this was a most unusual proceeding. He added that he had difficulty in finding any historical precedent for it, and said: "Sir, there was Naaman the Syrian, who was prevailed upon to bow the knee in the Temple of Rimmon, but we are not told that he continually interrupted the service".
Lord BALLANTRAE: Like everybody else who remembers him, I remember the noble Viscount's father with the greatest admiration and affection, but I think everybody, except him, thought it a quite improper position to be in. I remember an uncle of mine in politics saying, "The trouble with Sinclairs is that there is no holding them, once they get the bit between their teeth." I think that the principle put forward by the noble Duke, that lords-lieutenant should not get involved in politics, is absolutely right. I have nothing against the noble Viscount at all, except that he cheats a bit at fives, or used to; otherwise, I have no reservations about him at all. But I think that the principle enunciated by the noble Duke is absolutely right, and I go along with it 100 per cent.
Viscount MASSEREENE and FERRARD: I suppose that in this context "lieutenant" means "Deputy lieutenant" These Amendments would appear to be far too wide. Surely one would not want deputy lieutenants to be barred?
Several noble Lords: No, it means only lieutenants.
Viscount MASSEREENE and FERRARD: Oh, so it does not mean deputy ieutenants.
The Duke of ATHOLL: I should like to assure the noble Viscount that I certainly have no objection to the fact that he sits on the Liberal Benches. So far as I know, he did not get there by means of the hustings. The only matter that worries me about lord lieutenants being members of the Assembly is the way they get there. If they were to get there in the way that we do, by hereditary means, I think that it would be quite all right for them to be members of the Assembly. It is the actual election which worries me. Therefore, I have no objection to the noble Viscount; in fact, I am absolutely delighted that he
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is Lord Lieutenant of the District of Caithness. He is also very distinguished in the town of Thurso, where he has some equally grand title, which I have now forgotten. But I do not think the fact that he sits on the Front Bench of the Liberal Party in this Chamber disqualifies him from any of these functions.
But I believe it is undesirable for lords-lieutenant to engage in the hustings. I feel that the Government have partly admitted this by including subsection (2) of Clause 8. Had the Government not mentioned the point at all. I think no one would have raised it, so I feel they have been a little unlucky in that way. But now that the matter has been raised it would be very interesting to know what the Government feel about it.
Lord HAMILTON of DALZELL: Is this provision necessary at all? Despite what we have heard about the example of the father of the noble Viscount, Lord Thurso, it seems to me quite inconceivable that a lord lieutenant would dream of offering himself as a Member of the Assembly. I know many lords lieutenant in England who are not Peers. So far as I know, there is no rule, except of their own, which prevents them from offering themselves as Members of the House of Commons, but it would be quite inconceivable that they would do so. I speak as the lord lieutenant of an English county. I should not have thought it necessary to introduce a provision within an Act to dictate what lord lieutenants should do. I should have thought that they would have the good sense to do what this proposals seeks to enforce without their being bullied into it.
Lord RHODES: I can quite understand that. I do not think that the political affiliations of lords lieutenant can really hold the candle to the racism which exists between Lancashire and Yorkshire. When I was in Yorkshire and was appointed Lord Lieutenant of Lancashire, it was an education that I could recommend to anybody who wants to live an exciting life. I was put on test at once. I remember going into Liverpool on the first visit I made there. Subsequently I made 133 journeys to Liverpool in the three years that I was lord lieutenant. We came to a place where there was a lot of rubble in Upper Parliament Street, and there was a

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red lamp there. A hoard of lads came over to my car, and they saw me sitting in the back with my uniform on and my cap at the proper angle. The leader of the lads approached the car and shouted to his mates, "He's a bloody Tory." Then they gave me the rudest sign. I believe that on one occasion Harvey Smith used the same sign. I instinctively replied to them: I saluted. To my astonishment all the lads saluted back, and I think that I was the only man who ever went into Liverpool to a general salute.
I quite agree with the last speaker, who said that no lord lieutenant with any wit would really engage in politics in areas, particularly urban areas, where feelings run high. When I was lord lieutenant I took care that I sat on the Cross-Benches.
Lord HUGHES: When the noble Lord ceased to be a lord lieutenant he returned to where he now sits.
Viscount YOUNGER of LECKIE: I may say, to start with, that I did not sit on the Cross-Benches for that reason, but for many other very good ones. I think I must suggest to the Committee that one important point has perhaps been overlooked. Surely the objection to lords lieutenant taking part in politics is an objection as lord lieutenant, not as a Member of the Assembly; and I am in some doubt as to whether this is an appropriate place in which to lay that down. I do not know what consultations Her Majesty's Government have had with the appropriate powers-that-be, but it would be as well for them to consult those powers and to see just what would happen to a lord lieutenant in Scotland if he stood for the Assembly. I have a shrewd suspicion he would very quickly cease to hold that office.
The Marquess of LINLITHGOW: I, too, am a lord lieutenant. I thought we were rather rare birds; I had no idea how many of us there were. But I must say that I do not feel particularly cross about this, or particularly interested. One is in fact so used, as a Peer, to telling one's foreign friends that neither Peers nor lunatics have a vote that it does not really worry me very much if lords
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lieutenant are prohibited, as they apparently are by these provisions, from being Members of the Assembly. If they feel strongly about it and in fact want to stand for the Assembly, the answer is perfectly simple so far as I can see: they simply resign from being lords lieutenant. I do not feel strongly about this at all. I think that, if you feel that you should not, then you do not: if you feel that you should resign and you want to be a Member of the Assembly, you do so. I do not think there is really an awful lot about this which makes me feel particularly cross.
Baroness ELLIOT of HARWOOD: I live in a county of which I am not the lord lieutenant but where in fact the lords lieutenant, who have been the Dukes of Buccleuch for the last 40 years, have always taken part both in local government and in the constituency. The late Duke was the chairman of our county council for years; I think he was also Member of Parliament as Lord Dalkeith; and I believe he was still lord lieutenant then, though I am not absolutely certain. We welcomed the present Duke here only the other day on the occasion of his maiden speech. Nobody questioned for one moment that they should both he associated with either local government or the constituency. They have always been most popular, most loved and most respected; and the noble Viscount's father, Lord Thurso, about whom we have been talking, was just the same. I think this is a mistake, and I would not support it.
Baroness STEDMAN: This has been a most interesting debate, much longer, I think, than many of us anticipated when we started. Despite the blandishments of the noble Earl opposite, and despite, I am sure, my reputation for being terribly co-operative, I am not prepared to be co-operative with him in his Amendments today. The three Amendments, Nos. 235 to 237—he very generously gives me the option which one I will accept—disqualify the lords lieutenant and the lieutenants for any region, island, area or district in the United Kingdom; and they go much further than Amendment No. 238, which is down in the name of the noble Duke, the Duke of Atholl. The provision in subsection (2), whereby lords lieutenant and lieutenants are disqualified

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from membership for any constituency covering the whole or part of the geographical area in which they discharge their functions, translates into legislation the advice which is always given to lords lieutenant and lieutenants to stand aloof from politics in the area in which they hold office. In the same way, the House of Commons Disqualification Act 1975 disqualifies these office holders from membership for any Parliamentary constituency comprising the whole or part of the area in which they hold the office of lord lieutenant.
The Government can see no reason for departing from the practice whereby, although lords lieutenant or lieutenants do not take part in political activity within their own area, there is nothing to prevent them from taking part in political activities in other areas, or in national politics. Indeed, I began to wonder who was the Whip for the lords lieutenant this afternoon to get them to their feet one after the other. The lords lieutenant in your Lordships' House are not disqualified from sitting here and from giving us the benefit of their very much valued advice from time to time. Why should we disqualify them, if they feel so inclined, from representing another part of the area within the Scottish Assembly?
There is a minor technicality, in that the Amendment fails to achieve its purpose of disqualifying lords lieutenant and lieutenants for areas in England and Wales from Assembly membership, because, as the noble Earl, Lord Kintore, pointed out to us, we have Lord Provosts in the major Scottish conurbations, who are very political animals to my knowledge. Also, of course, if we want to achieve this purpose then we have to make reference to the lords lieutenant or lieutenants who are holding office in the City of London, in Greater London or, as my noble friend Lord Hughes has told us, in any county in England.
I am sure this is something we can leave to the good sense of the lords lieutenant. If they feel that they can do this job and are serving their locality best by offering themselves for the Assembly for some part of the country in which they do not hold office as the lord lieutenant or the lieutenant, who are we to try to debar them from doing this? Again, it is going to put a burden on them because they are going to
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have to give their attention to two different parts of a region, probably, the area which they cover as the lord lieutenant and the area which they cover as a Member of the Assembly. But this is something which they and their constituency Parties, in selecting them as candidates, will have to face up to, and they will have to make the choice. Far be it from us to disqualify them from taking part in the Assembly if they wish to do so.
The Duke of ATHOLL: May I ask the noble Baroness one question before my noble friend says whether or not he is going to withdraw his Amendment? It is this. As we carried the Amendment, moved by my noble friend Lord Drumalbyn, to introduce proportional representation and the additional Member system, does the second half of this subsection cover the case where the candidates are on the Party list, and, therefore, may it be covering a much bigger area than just the area of which they are lord lieutenant? The subsection seems to me to mean—and the noble Baroness has confirmed this—that a lord lieutenant may not stand for a constituency in the area of which he is lieutenant. But, having carried the Amendment moved by my noble friend Lord Drumalbyn on proportional representation, there are to be these 50 or so Members chosen off a Party list, and in some cases they will cover a much bigger area than that of which the person concerned is lord lieutenant. Would the noble Baroness not think, therefore, that the second half of this subsection—and perhaps I ought to address this to my noble friend—ought to be rephrased in some way to cover that point?
Baroness STEDMAN: It would certainly need to be rephrased to cover that, but it was not the intention of the Government to cover the people on the nominated list by this part of the Bill. They will not be representing a constituency. We are concerned with those people who will he representing constituencies.
Earl FERRERS: I am bound to say that I never thought that my modest little Amendment would produce the kind of debate that we have had One could not help thinking, with the greatest respect, that it drew the mice out of their holes. But when the noble Lord, Lord

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Hughes, said that he thought my third Amendment would be inaccurate because lords lieutenant would not be responsible for regions, islands, areas or districts, I thought, in a slightly facetious fashion, that the point might be solved if we merely put a comma between "islands" and "area", and that that perhaps, would accommodate the noble Lord's point, at least in spirit if not in law. He said that it would not disturb his sleep for very long. When I heard the noble Viscount, Lord Thurso, I thought, "Not if the noble Viscount uses the technique which his father used to use of putting bees in people's bedrooms! "I thought that would not allow the noble Lord to sleep for very long.
I am bound to say that I felt, and still feel, that, in a way, it is slightly undignified for lords lieutenant, acting in the capacity that they do, to stand on the hustings for election as Members of the Assembly, but I quite accept that this is not the feeling of noble Lords in this Committee, and I therefore would not wish to press this.
When I said earlier that noble Lords used to sit on the Cross-Benches if they were lords lieutenant, I had the noble Lord, Lord Rhodes, in mind. He used to be a prominent Member of the Labour Party and when he took over his lord lieutenantship he always sat on the Cross Benches and gave a good example. I thought that he must have given a good example to his friends he met on the slag heap when he gave them a magnificent salute and they saluted back. What I wondered about was what he did on the first occasion to prompt the initial salute. I am grateful to noble Lords for the contributions they have made to the debate. If it is the Committee's wish that I should withdraw the Amendment, I certainly beg leave to do so.
Amendment, by leave, withdrawn.
[Amendments Nos. 236, 237 and 238 not moved.]
6.1 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 67:
Page 5, line 18, leave out from ("Parliament") to end of line 21.
The noble Viscount said: I am afraid
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that this Amendment is not going to cause as much excitement but it raises a point where, I think, we are in danger of getting a multiplicity of legislation and subordinate legislation. The last limb of subsection (5) provides that an Order in Council can be made to add or substract from the list of offices disqualifying from membership of the Assembly made under the 8(1)(c) that we were talking about earlier, and it provides that if the Assembly themselves ask the Secretary of State to present the Order in Council it does not require the approval of Parliament here.
This is in line—as I am sure the noble and learned Lord, Lord McCluskey, will be telling us very soon—with Section 5(1) of the House of Commons Disqualification Act 1975; but it is not quite so simple as it is in the case of the House of Commons Act. I think the position is this—and the noble and learned Lord will tell me if I have it right. The list that we discussed earlier and which is going to be contained, first of all, in an Order in Council alone and not in legislation, will be capable of being amended by four different methods.
First, I would imagine it will be capable of being amended by a United Kingdom Act of Parliament. Secondly, it will be capable of being amended by a Scottish Assembly Act. Thirdly, it would be capable of being amended by an Order in Council which was not resolved upon by the Scottish Assembly and therefore will have to go through the Affirmative Resolution procedure in both Houses here. Fourthly, it is capable of being amended by an Order in Council following a resolution of the Assembly which does not have to go through any Parliamentary procedure at Westminster at all. I hope that that is right.
If so, I am not sure how on earth anybody is ever going to find out what is the definitive list. It is bad enough when you have the three methods, but at least there is some opportunity of there being some publicity either for legislation which passes through this Parliament or that which passes through the Assembly or for an Order in Council which must be brought up specifically under the Affirmative Resolution procedure. But the further addition of Orders in Council which do not have any Parliamentary notice taken of them at all seems to be the last straw.
The bit of the equivalent legislation in the 1975 Act which is not reproduced—and significantly not reproduced—is that Orders in Council which follow a Resolution of another place (which therefore do not have to be presented to either House under the Affirmative Resolution procedure) as a matter of law find themselves reflected by being printed in every subsequent Queen's Printer's copy of the House of Commons Disqualification Act 1975 or whatever should succeed it. Therefore, you have at least some chance if you buy an up-to-date copy of the Act or if you look at one of the reference books —which I still maintain do not exist in Scotland—of finding out what is the current situation. I do not think that any such ability will be available for people if this provision remains in the Bill.
I am not going to suggest that we should not have a convenient method, but I think that a little explanation is due if we are going to have four methods of amending this list. I should like the noble and learned Lord to explain how on earth it is that anybody is supposed to keep up to date with the large list, and ever-changing list, of offices which disqualify. It was in order to get some clarification on this that I put down this Amendment and I hope that the noble and learned Lord will be able to explain it. I beg to move.
Lord McCLUSKEY: The noble Viscount describes correctly, as I understand it, the effect of the clause and the Bill in relation to the matters about which he has spoken. However, I think that I am entitled to look at the likelihood of the list being amended in each of the particular ways. First, I should have thought that once this particular Bill becomes a Statute it is unlikely that there would be amendment by a United Kingdom Act except in so far as the United Kingdom Act might amend the 1975 House of Commons Disqualification Act so that there would be amendment there. That would then apply perhaps to the Assembly as well, except, of course, if the Schedules to the Act are not incorporated into this particular Bill then an amendment of a 1975 Act Schedule by the United Kingdom Act will not have any effect on the Assembly list.
In so far as a Scottish Assembly Act is concerned, I think I am right in agreeing with the noble Viscount that it would be
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possible by a Scottish Assembly Act but I think it is unlikely that the list would be amended in that way. The principal list would be plainly the one contained in the order envisaged in the subsection and there may be further amending orders of the kind referred to in the latter part of subsection (5).
What these words in the latter part of subsection (5) are designed to cover is a situation where the Assembly may legislate, for example, on housing and want to disqualify a person who, as a result of that legislation, holds an office the tenure of which is inconsistent with membership of the Assembly. If they thus produce legislation, it is thought reasonable they should be able to have that office added to the order without having to trouble either House of Parliament here for a Resolution, to have the order looked at by this House.
In a sense, these words are here to avoid imposing undue and unnecessary extra work on Westminster in relation to matters truly consequential upon ordinary Westminster legislation. In relation to the point of convenience mentioned—will there be an exhaustive list?—I must confess that as a result of these various possibilities there will be no one exhaustive list. However, I should have thought that the Scottish Assembly would necessarily keep a note of the offices which do disqualify and it would be fairly easy for anybody to find out from the officers of that Assembly what the exhaustive list is. It would not be an official list but a compilation from the official lists. As I said earlier in relation to Amendment No. 66, for those persons likely to be affected, one would have thought the bodies themselves would take note of any provision which affects them. So, for the convenience of Members, that would be the route; for the convenience of the general public, I would expect the Assembly to have its own compilation. I hope that that sufficiently meets the noble Viscount's point.
6.10 p.m.
Viscount COLVILLE of CULROSS: I am much obliged to the noble Lord. I do not see any reason why a United Kingdom Act of Parliament which created a body the membership of which, because it extended to Scotland, was inconsistent with the membership of the Assembly at

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the same time as disqualifying members of that body from the House of Commons, should not do so in relation to the Assembly. Indeed, I would expect it to do so if it were United Kingdom legislation, and that would be so notwithstanding the fact that the main list of offices bringing about disqualification lay in an Order in Council in the first place. This is sloppy drafting; but it is becoming increasingly common that one amends subordinate legislation by primary legislation. I believe it is considered to be a heresy but I have seen it done all too often.
Would not the noble and learned Lord consider this. If we are going to have some conventions about this—and I see no difficulty in creating conventions—could we not have the equivalent of what is in Section 5(2) of the 1975 Act? If there are to be changes, could not the Orders in Council, whether or not they go to this House, because they result from a resolution of the Assembly, simply result in an official reprint of the whole list so that there may be an official up-to-date version all the time? It would seem to me a comparatively simple action to take. It could be incorporated in the actual order that brought about the change. It would only be a matter of ink and printing, and I would have thought that would be worth doing.
Lord McCLUSKEY: That is a suggestion I certainly would be happy to look at. It may be that, as the noble Viscount foreshadowed earlier, he will be producing his own list. Whether or not we ever see such a list, I shall take that point on board and consider it.
Viscount COLVILLE of CULROSS: On that basis, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 8 shall stand part of the Bill?
6.12 p.m.
Lord McCLUSKEY: May I answer the point raised by the noble Lord, Lord Campbell of Croy, about the Rehabilitation of Offenders Act 1975. The general purport of the Act is that a conviction is spent after a period of years. The period after which the conviction is spent is a minimum
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of five years for what I might call an offence relevant in the context of Clause 8(1)(b). One finds that from Section 5 of the 1974 Act, Table A and the related Table B appended to Section 5. Accordingly, if within the past five years a person has been convicted of a relevant offence, his conviction is not spent and the blot on his escutcheon remains. At the same time he is disqualified under Clause 8(1)(b). So for at least all practical purposes the five years in the 1974 Act and the five years in the clause under consideration coincide.
Lord CAMPBELL of CROY: I am grateful to the noble and learned Lord for having managed to do his researches in such a short amount of time, the past two hours or so, and to have provided an answer. There is one point arising from what he has said under the wording of Clause 8(1)(d). Of course it is not earlier than five years before the last ordinary election of Members. The last ordinary election of Members could be almost four years ago, so the period as I see it there could extend to almost nine years—certainly eight years or so. Will the noble and learned Lord confirm that what he has said takes into account that it is not simply a period of five years, that it is at least five years and then the additional time since the last ordinary election of Members?
I said, when I was speaking on this point, that I understood that there was some special provision in the legislation on the rehabilitation of offenders applying to membership of the House of Commons. The noble and learned Lord did not mention that point. Again, if it is something that needs more notice, I quite understand; but, as I was under that impression, I should be grateful if the noble and learned Lord will tell me the answer.
Lord McCLUSKEY: I did not in my quick "gallop" through the 1974 Act find any reference to the House of Commons. I do not expect it would be contained in that Act but would be in legislation relating to the House of Commons. On that and the other residual point, perhaps the noble Lord will permit me to write to him, having answered the main question.
Viscount COLVILLE of CULROSS: I think that it is more likely to be in subordinate legislation made under the 1974

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Act. That is just the trouble: you never can find it.
Lord McCLUSKEY: Well, I did not look very hard.
Lord CAMPBELL of CROY: I am, none the less, grateful to the noble and learned Lord. I did not expect him to be able to reply today. It was his concern to try to give us more information which enabled him to come forward with the result of his research into the 1974 Act. It has confirmed Lord Colville's point that so much legislation is in subordinate legislation and it is difficult to find a register which can guide one to it. It takes time to look up matters when they are raised in this way. None the less, I am grateful to the noble Lord for having given us this additional information on the Question, Whether the clause shall stand part of the Bill.
Clause 8 agreed to.
Clause 9 [Exceptions and power to grant relief from disqualification]:
6.18 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 239:
Page 5, line 32, leave out from ("removed") to end of line 33.
The noble Lord said: I am moving this Amendment in order to obtain an explanation from the Government of the circumstances in which the Assembly would consider it proper to waive the disqualification of someone who was disqualified. Under paragraph (a) of subsection (2) it is stated that if the ground for disqualification has been removed the Assembly can decide that someone is no longer disqualified. That is perfectly understandable. But then there is this additional paragraph (b) of the subsection which simply states that the Assembly can do it if it appears to be proper to do so.
I must read this subsection in order to ask the Government to explain its terms and then to suggest, if the Government's explanation is not satisfactory, that the drafting should be looked at again. It says:
"Where a person was, or is alleged to have been, disqualified on any ground for membership
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of the Assembly, either generally or for any Assembly constituency, and it appears to the Assembly—

(a)that that ground has been removed; and

(b)that it is proper to do so;

it may resolve that any disqualification incurred by that person on that ground shall be disregarded ".
Where a person was disqualified on any ground for membership of the Assembly, and it appears that that ground has been removed, then I agree that it is perfectly reasonable that the Assembly should have power to resolve that the ground can be disregarded.
When we come to the alternative, which is where a person is alleged to have been disqualified, I can see that where it is only an allegation it may be that paragraph (b) of subsection (2) is appropriate. It is only an allegation; the person has not actually been disqualified; it is only alleged. In that case, it could be that the Assembly simply considers it proper to disregard the grounds. As at present drafted, it is possible for someone to be disqualified and the ground for the disqualification not to have been removed, but for the Assembly simply to decide that it is proper to disregard the grounds.
I therefore ask the Minister to explain why it is phrased in this way. I also suggest that it might be better to relate paragraph (a) to where a person was disqualified and paragraph (b) to where there is simply an allegation—the words "or is alleged to have been". At present those two are not related to each other directly and therefore it is possible for the Assembly to waive disqualification when the grounds for disqualification have not been removed simply because it is regarded as proper; but who can say what the word "proper" covers? I hope that the Government can now. I beg to move.
Lord KIRKHILL: It may help the noble Lord, Lord Campbell of Croy, and indeed your Lordships, if I explain the Government's approach to the provisions containing the machinery with regard to disqualification for membership of the Assembly. We have not tried to create new law; instead, we have thought it appropriate to apply as closely as possible the corresponding provisions of the House of Commons Disqualification Act 1975. Clause 9(2) of the Bill repeats the provisions of Section 6(2) of that Act, so far as

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they allow the House of Commons to direct that a disqualification or an alleged disqualification may be disregarded. So we have done nothing more than is being done for the House of Commons at the present time.
The scheme of both provisions is that the power to disregard is available where two conditions precedent are satisfied; namely, that the ground of disqualification has been removed, and that it is appropriate to disregard the disqualification. This Amendment would leave out the second condition precedent. For the reason I have just given, the Government would resist this. In our view, the Bill should follow the established precedent. On this view I would say only this: there is a wide difference between the case where the Member apprehends that he may inadvertently have incurred disqualification and the case where there was never the slightest doubt that the Member knew all the material facts and knew exactly what his position was. That is why the 1975 Act provision has the two conditions precedent, and does not rest simply on the bald fact that the ground of disqualification has been removed. It must surely be right that the House or the Assembly has the power to look at all the relevant circumstances. What they are doing is, after all, very far-reaching. They are validating the membership of a Member who, but for these provisions, would be unseated. That, on the advice I have, is as clear an explanation of the Government's position as I can give at this stage.
The Earl of SELKIRK: I wonder whether I might ask the noble Lord one question. Would his interpretation of paragraphs (a) and (b) be strong enough to override the requirements of Clause 12? Clause 12 demands that the Oath of Allegiance be taken before any Member can act in his office. If this was regarded as something which it was proper to do, would it mean that the lack of taking the Oath of Allegiance would not constitute a disqualification? I have no doubt that the noble Lord would not wish it to be used in that way, but the question I am asking is: Do we need something in Clause 12 to make it quite clear that it cannot be overridden by Clause 9(2)? I should like to have a clear-cut and
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definite answer to that, because otherwise I think some additional qualification would be required to Clause 12(1).
Lord KIRKHILL: I regret to say to the noble Earl that off the cuff I cannot give him the sort of assurance that he seeks. I will certainly undertake to seek advice on this and to communicate with him. If he is dissatisfied with what I say, then he can return to the matter.
Lord CAMPBELL of CROY: Perhaps my noble friend might expect a reply when we reach the Question that Clause 12 stand part, if the Government have time to go into the matter and are able to give an answer. It is something in which we are all interested and, with my noble friend, we should all be interested in the reply.
May I say immediately that I agree that the Assembly ought to have the power to look into the disqualification of its Members. The point I was raising was whether this subsection was drafted as felicitously as it should be. I also agree in principle that the kind of provisions should be similar to those for the Westminster Parliament, and the noble Lord has indicated that that is the Government's intention. But I should be surprised if the wording were exactly reproduced, because it is the wording with which I find fault.
I shall not pursue this now—it is a Committee point and somewhat complicated—but I would ask the noble Lord to ask his advisers to look very carefully at what I have said when they read Hansard tomorrow—if it is printed, because I know there are printing difficulties. I think the noble Lord will then realise that my point is not that this wording should be taken out, as is suggested in my probing Amendment, but that it should be related to one of the two cases mentioned by the noble Lord; that is to say, the case where a person is not clearly disqualified but where it is simply an allegation, or that he feels himself that he might be.
That would be a case where the Assembly, if it thinks it proper, can decide to quash the disqualification or to disregard the alleged grounds. But where there is a disqualification and that is clear, and the grounds have not been

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removed, then I think that should be a separate matter and ought not to be covered by those words. In that case, I think the ground ought to be removed before the disqualification is disregarded. But, having made the point, unless the noble Lord has any further point he wishes to make, I would simply ask him whether he could arrange for this matter to be studied before the Report stage of the Bill, because I do think there is an opportunity for improving the subsection.
Lord K1RKHILL: As the noble Lord, Lord Campbell of Croy, will perhaps guess from our previous experiences together across these Dispatch Boxes, I will certainly study carefully the remarks he has made and will consult with my officials as to the particular point he has raised in these last moments.
Lord CAMPBELL of CROY: I am grateful to the noble Lord and now beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 9 shall stand part of the Bill?
6.28 p.m.
The Earl of LAUDERDALE: Before we pass from this clause I should like to make one or two remarks. First, the point raised by my noble friend Lord Selkirk, to which obviously we shall return on Clause 12, is very important indeed. If I read correctly the two clauses to which he is drawing attention, we want to make it absolutely certain that the Scottish gathering or Convention cannot dispense its Members from the Oath of Allegiance.
The other matter I should like to come back to with the noble and learned Lord, Lord McCluskey—because I raised it earlier, not very clearly—is the question of enabling ministers of religion to sit in the Scottish Convention. The purpose is admirable. One can think of Scottish clergy who take part now in local government—for example, the Provost of Fort William who recently became Bishop of Argyll. The Provost of lnvergordon is another case in the Scottish Episcopal Church, and then there is Councillor Gordon Reid of the Lothians Region. These three are most distinguished and
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active Episcopalian clergy who take, or have taken, part in Scottish political life.
The question I would ask of the noble and learned Lord, and I would ask him to look at it in due time, is whether this clause quite achieves its object. The apparent object of Clause 9(1)(b) is to enable ministers of religion to take part; but while ministers as such are therefore not excluded, the House of Commons disqualifications do apply under Clause 8(1)(a). Thus beneficial clergy in the Church of England are not eligible for membership in the House of Commons. I have always understood that that was not so much related to questions of patronage in the ecclesiastical sense but to the fact that they are, or may be regarded as, holding offices of profit under the Crown. But now the strange anomaly which recently came to light is that, apparently, clergy of the Episcopal Church of Scotland are disqualified from presenting themselves to the electorate for election to the House of Commons.
Lord McCLUSKEY: May I intervene to say that my advice, received since the noble Earl spoke, is that that is not so.
The Earl of LAUDERDALE: I am much obliged to the noble and learned Lord. Perhaps he could write to me, because a case arose recently when a clergyman was wanted for adoption as a candidate for Parliament in a constituency, and the legal advice that was given to him in Edinburgh was that he was disqualified. So that if we can get that absolutely clear, I shall be grateful. I know that the noble and learned Lord will not take it amiss when I say that some of the correspondence that he and I have had, through his office, has gone on at a rather leisurely tempo. In this matter, I should be grateful if I could hear from him fairly soon, so that I can refer to the people in Scotland. Having advised me in this way, I know that he will do his best.
Clause 9 agreed to.
Clause 10 agreed to.
Clause 11 [Judicial proceedings as to disqualification:]
6.32 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 240:

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Page 6, line 26, at end insert ("; and the applicant shall give such security for the costs of the proceedings, not exceeding £200, as the Court of Session may direct.").
The noble and learned Lord said: This is an Amendment designed, as your Lordships will see from its terms, to incorporate into this Bill a provision that one finds elsewhere, particularly in the Local Government (Scotland) Act, to ensure that a person who challenges an election can be required by the court, but subject always to the jurisdiction of the court, to find security for the costs of the proceedings. It is a simple matter and I hope that it excites no controversy. I beg to move.
Lord HAILSHAM of SAINT MARYLEBONE: This Amendment will indeed excite no controversy. But it enables me to say to the noble and learned Lord, by way of apology, that I have hitherto been calling him noble but not learned. This was not intended to cast any doubt upon his learning; it is simply that I was under the impression that the conventions of this House, in contradistinction to another place, accorded the Homeric epithet only to those who had held high judicial office which has not yet occurred to him, though no doubt it will one day. I learn now that the conventions of this House apply to law officers of the Crown but not to those who are Queen's Counsel. I have learned something in the course of this. I am sorry to have underestimated the noble and learned Lord, not in my mind but in my speech, and I hope that he will forgive me. He shall henceforth be learned as well as noble.
There is only one question which I should like to ask him, and that is out of pure curiosity. My Scots law is very rusty, but I was under the impression that when the Scots asked for security they used a word which they pronounced "cayshun" and spelt "caution." Is that so, and why is it not called "caution" here?
Lord McCLUSKEY: The noble and learned Lord is very gracious indeed to say what he has just said. He also gives me the opportunity to establish that I am not nearly so learned as he thinks, because I made a mistake when I was introducing this Amendment. I referred to local government, but I should have
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referred to Section 7(3) of the House of Commons Disqualification Act 1975. "Caution" is a good word, but it is not necessarily one that would be understood. "Security" is a perfectly good word and it is understood. Both words would work. This one works and is comprehensible, so I shall defend it upon that basis.
On Question, Amendment agreed to.
Clause 11, as amended, agreed to.
Clause 12 [Members' oath of allegiance]:
On Question, Whether Clause 12 shall stand part of the Bill?
The Earl of SELKIRK: I asked the noble Lord, Lord Kirkhill, whether Clause 12 should in any way be subordinated to Clause 9. I am understanding now from him that it should not, and that Clause 12, which deals with the oath of allegiance, stands absolutely alone and cannot in any way be affected by Clause 9. If the noble Lord will confirm that—which I think he will—I shall be very grateful.
Lord KIRKHILL: Yes, indeed, I confirm that. The position is exactly as the noble Earl has explained.
Clause 12 agreed to.
Clause 13 agreed to.
Clause 14 [Subsidiary powers of Assembly:]
6.36 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 68:
Page 7, line 12, after first ("is") insert ("directly").
The noble Earl said: This Amendment goes with No. 69 and it is almost a drafting Amendment, but not quite. Clause 14 relates to the subsidiary powers of the Assembly. Your Lordships will see that they are, as drafted, very sweeping. The clause states that
"… the Assembly may do anything … which is calculated to facilitate, or is conducive or incidental to, the discharge of any of its functions ".
It seems to me that those are very wide powers indeed, because almost anything that is done can be said to be in some way conducive to its functions, or facilitating

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its functions, even if those things are really outside what should be its purview. The noble and learned Lord looks worried.
Lord McCLUSKEY: No.
Earl FERRERS: That is a great relief to me, because it was getting me worried. I beg the noble and learned Lord's pardon. I see that I was addressing the wrong noble Lord, and should have been addressing the noble Lord, Lord Kirkhill. What I am hoping to do by this Amendment is to insert the word "directly" in front of both "calculated "and" conducive". If that is accepted—and I am sure that one of the two noble Lords will find it in his heart to accept either, or preferably both, of these Amendments —it will be slightly more restricting on the Assembly, because it will then be allowed to,
"do anything … which is directly calculated to facilitate, or is directly conducive or incidental to, the discharge of any of its functions".
I think it is reasonable that there should, at least, be that amount of restriction and I hope that the noble Lord will see fit to accept this Amendment. I beg to move.
Viscount COLVILLE of CULROSS: Before the noble Lord, Lord Kirkhill, answers on this Amendment, I wonder whether I may add a word to what my noble friend has said. The reason why I put my name to this Amendment is rather different from the grounds he has chosen. I look upon this rather more as a point of substance than of drafting. The wording of this clause is undoubtedly derived—certainly, in my experience which, I am afraid, is the English origin—from Section 111 of the Local Government Act. Funnily enough, I cannot find the equivalent provision in the Local Government (Scotland) Act.
Lord McCLUSKEY: It is Section 69.
Viscount COLVILLE of CULROSS: Anyhow, I am sure that it is the same. From time to time, I have had an opportunity to consider with local authorities the scope of the English provision, but I have no doubt that the Scottish provision is the same. When one looks at the reports of Parliamentary debates, or at the material that was available to Ministers taking part in the discussions on the Local Government Bill, one finds that the
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whole purpose of those provisions was to provide a great deal wider scope of general powers to act in all kinds of fields than had hitherto been available to local authorities. In other words, the change in drafting from what was contained in the old local government Acts of the 1930s, certainly in England, to what now appears in Section 111 for England and Section 69 for Scotland was intentionally to grant a great deal more freedom of action to local government than had hitherto been available. Indeed, this is now reflected, because one finds, for the sake of argument, that in Section 126 of the Housing Act 1974 there is a reference back to the extraordinarily wide powers whereby agreements covering all kinds of property development and property transactions which are enforceable can now be made under the Housing Act. Indeed, upon this peg has been hung not only legislative but I think executive actions of the greatest width.
I am not at all sure that I understand how this concept is applicable to the Scottish Assembly as being a separate function from its legislative function. It cannot be that Clause 14 has anything to do with its powers to legislate, because that is obviously dealt with by other clauses in the Bill. Therefore we must be speaking about some kind of administrative provisions such as the employment of stair or the printing of Parliamentary debates, which plainly must be provided for. However, what occurs to me—and this is why I should like the word "directly" to be put in—is that instead of giving greatly enlarged scope and freedom to the Scottish Assembly to deal with all kinds of ancillary matters, as has been done in the case of local government, we ought to consider quite carefully whether it is right to do so.
I should like to have from the Government some examples of the kind of actions that are proposed to be taken under this clause and, if possible, some idea of the kind of actions that would not be able to be taken under it because, wide though it is drawn, those actions would be outside its scope. I should like to see where the boundaries lie.
The reason, therefore, why I suggest the insertion of the word "directly" is that we are probably dealing with a much narrower and more administrative range

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of functions than would be covered by the equivalent legislation for local government and that we ought to differentiate in legislative language between the scope of two disparate sets of powers. For that reason, I think that there is a very substantial point here, particularly if I am wrong in supposing that this has something to do with legislative powers. I do not think that it has; but if it has, then we must be even more careful about the way in which this clause is phrased.
For the moment I should like to reserve judgment on the way that it is phrased until the noble Lord has had an opportunity to think about the point if he cannot answer it today, because I believe there is something in it.
6.43 p.m.
Lord KIRK HILL: May I say at the outset to the noble Viscount that this clause and provision deals with administrative arrangements and not with legislative functions. May I suggest that it is possible to exaggerate the effect of Clause 14. With respect, I think that this has just been done. First let me explain briefly the purpose of the clause and then try to show that it provides none of the perhaps more frightening prospects —if that is not an exaggeration—which have been mentioned.
The purpose of Clause 14 is to avoid uncertainty about the subsidiary powers of the Scottish Assembly. I am advised that it is a well understood principle of common law that a statutory corporation can do anything incidental to the discharge of its functions, but it is sometimes necessary to make this clear beyond doubt. I am not making a Party political point when I say that this was done by the previous Administration in relation to local authorities in the Acts which reorganised local government.
As has been mentioned, Section 111 of the Local Government Act 1972 applies, as does Section 69 of the Local Government (Scotland) Act 1973. These sections are expressed in terms not dissimilar to Clause 14 of the Bill. The Assembly is not a statutory corporation but a unique statutory creation. In the Government's view, it is clearly desirable to have a provision of this kind against the possibility of any claim that the common law principle
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does not apply. The Government's view is that the matter should not be left in the air in this regard.
If I may turn to the effect of the clause, this is best exemplified by saying that one of its main effects is that no one will be able to question the competence of the Assembly: for example — the noble Viscount has asked me for such an example—when it builds offices and buys furniture to equip them. It would be quite wrong if competence of that kind were left in any doubt.
Perhaps I could put this question: does its effect go wider and offer serious opportunities for abuse? Hesitation has been expressed about that question. The Government's view is that it is difficult to see how it does. Certainly the powers conferred by the clause are general and therefore unspecific. In the Government's view, surely this is right in the context of a legislative Assembly which must be able to do whatever it requires to do in relation to the discharge of its functions. I think that is the key and the safeguard.
Whatever is done under the clause must be strictly within the aim of furthering the Assembly's functions. I am advised that the clause cannot be used to extend these functions. In other words, the powers which the clause confers are, as the sidenote to the clause says, "Subsidiary powers of Assembly". It is for that reason that the Government consider Clause 14 to be necessary. It is properly tailored to meet its purpose and could not be used to go beyond its purpose. The Government therefore see no need for the Amendments and believe that they would serve only to make the provision less effective. We hope, therefore, that the Amendments will not be pressed.
Viscount COLVILLE of CULROSS: The noble Lord is in no way to be criticised for not answering everything that I said, because I am afraid that I did not give him notice of it. I anticipated that he would look up the Parliamentary origins of the local government provisions rather more carefully than perhaps he did. For all that, I know I may be wrong about this, but I do not think so. I am wondering whether the noble Lord would care to consider this matter again, not necessarily today but before the next stage.

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I take entirely the point that there have to be these subsidiary powers. Obviously, it would be very sensible to put beyond any doubt that the Assembly could deal with ordinary housekeeping matters and handle all that kind of thing without anybody throwing any doubt upon its statutory powers to do so. Nobody on this side of the Committee or anywhere else would complain about that, but what I am a little concerned about is this: I understand also that these powers have to be taken in pursuance of the Assembly's functions. The Assembly's functions are, however, very wide. They are legislative functions as well as administrative functions.
If I am right, the provisions contained in the local government Acts were an invitation to local government bodies to spread their wings, though not in a ridiculous way. They were supposed to grant extra freedom which had not previously been available to the older local authorities. If I am right, these provisions were included in those Acts in order to create greater freedom for local authorities to fulfil their functions, which were equally very wide functions but by no means the same functions as those which the Assembly will have to fulfil. They were included so that local authorities could carry out duties in relation to their areas and provide all kinds of services, the necessary finance and so on.
If one uses the identical words in this Bill to relate to the Assembly's functions, which are wide but different from the words which one used for local authorities to exercise their functions in a context where those previous enactments were intended to be permissive and to grant greater freedom, I think it will be an invitation, or will be taken as an invitation, by Parliament to increase the powers of the Assembly or to allow it to do things which I am sure that the Government of the moment are not envisaging it will do. I do not know whether or not this is right. However, it is a serious point and one which ought to be thought about again. I am not asking the Government to think about it again today. I am just asking that the point should be looked at in order to make sure that by using identical words we are not doing something which we do not intend to do.
Lord KIRKHILI: I accept that it is a serious point which the noble Viscount has made. For my part, I take advice on a matter which I consider to be rather convoluted legalism. However, I will look carefully at the comments which the noble Viscount has made and will consider his remarks with those who advise me.
Earl FERRERS: I am grateful to the noble Lord, Lord Kirkhill, for saying that he will look again at what my noble friend has said. I think there is nothing between us in the intent; it is that the Assembly should have appropriate and adequate powers. When the noble Lord said that it has to build buildings and buy furniture, of course it has to do all that; and if the word "directly" were inserted that would not in any way curtail those powers. The only thing we should be concerned about is that by giving such huge powers one could really almost say that the Assembly could do anything it liked. We feel that is a little too wide. I am grateful to the noble Lord for saying he will look at this again and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 69 not moved.]
Clause 14 agreed to.
Clause 15 [Defamatory statements in Assembly proceedings:]
6.51 p.m.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 70:
Page 7, line 18, leave out ("(whether oral or written)").
The noble Earl said: This clause deals with defamatory statements in Assembly proceedings. This is one of the clauses which quite definitely raises this Assembly, Convention or whatever we call it, above the level of a blown-up local authority, which can make by-laws into what amounts to Parliamentary powers; and I am questioning whether, in doing so, not that they should have absolute privilege for debates but whether it is necessary to include written statements, bearing in mind that the power of absolute privilege is a formidable power indeed. It means that we are free in this Chamber to make false statements maliciously

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which are deeply injurious and there is no redress so far as the injured person is concerned. It is true that the House may take action, but there is no redress for the person who is injured. It is widely recognised that this is dangerous, and indeed it is sometimes taken advantage of, but I believe it is more important that people should be absolutely free to express their opinions without fear of any action outside Parliament.
There are one or two special considerations in the way in which this is framed. In the first place, this is a new body which has not yet had any experience of this type of absolute privilege. Of course it has existed in the courts in Scotland; but they are presided over by judges, and that is rather a different situation. Here there is no reference whatever to the precedents and traditions which have been set up in Westminster; there is here no reference to Erskine May or any of the traditions. As has always been the case, the clause is not what it appears to mean, but what it may be interpreted to mean in hard cases. For all these reasons I wonder whether the draftsman has given enough attention to the principle which is widely accepted, that absolute privilege should not be wider than is reasonably necessary.
There was an entirely different course which the Government could have taken and one which, so far as I know, has been almost universally taken in Colonial territories going independent. I should like to quote the passage concerned in the Constitution of Canada:
"Such and the like privileges, immunities and powers as, at the time of the passing of the British North America Act 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom, and by the Members thereof, so far as are consistent and not repugnant to the said Act. "
It is perhaps even more interesting that, as late as 1976, the Amendment to the Constitution in India says this:
"In other respects, the powers, privileges and immunities of each House of Parliament, and of the Members and the Committee of each House, shall be such as are of the House at the commencement of this amending provision and as may be evolved by such House from time to time."
This goes back to the traditions which have been set up in the House of Commons. The basis of this is the freedom of debate. Procedures in Parliament ought
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not to be impeached. That is the principle of Article 9 of the Bill of Rights 1866. This was originally designed against interference by the monarch and has now been turned, in a manner which is strangely similar to certain passages in the change from democracy to tyranny which was referred to by Plato—it is now turned not against the Monarch but against the general public.
I suggest that what happens under Clause 15(1)(b) referring to publications or documents under the authority of the Assembly, was quite adequate and it is not necessary to give privilege to a very difficult definition; namely, writings which take place in the Assembly proceedings. This raises a very much wider figure, and I wonder whether in the circumstances it is truly necessary. I believe the written word is too vague in these circumstances without the backing of the traditions which have been built up in Westminster. In any case, of course, it would be covered by qualified privilege, and I am about to suggest therefore that these words could safely be left out and the defamation of speech should remain firmly as it is here and without the written word. I beg to move.
Lord HAILSHAM of SAINT MARYLEBONE: Before whichever noble and learned Lord who is going to reply, does so, I wonder whether they would consider a rather cognate point which I could have raised on the Question, Whether the clause shall stand part? I think, however, it is more convenient to raise it here. It is the meaning of the words, "proceedings of the Assembly" in Clause 15(1)(a) as they are defined there. As the noble and learned Lord will know, it has been the practice in the House of Commons and it has been the subject of rather earnest discussions in the courts. I am not sure whether those discussions and those reported decisions in relation to the House of Commons are directly relevant to the Assembly which we are now setting up.
Supposing, for instance, a constituent of the Assembly Member writes to that Assembly Member some very highly damaging remarks in the way of a complaint against a third party, and supposing the Assembly Member then writes to the chairman of the committee or the First Secretary, or whoever is the responsible executive for the matter in question, and

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either endorses or passes on the letter which has been written to him and which is defamatory of the third party. Will the Assembly Member be protected by absolute privilege under Clause 15(1)(a), or will he not?
I cannot remember exactly how many cases about the House of Commons there have been, but there is more than one and they turn on the meaning of the phrsae "proceedings in Parliament". The proceedings in the Assembly will perforce be different in character in many ways from those in the House of Commons, and I should like to know whether the noble and learned Lord has given thought to the matter and, if he has, what his answer will be.
The LORD CHANCELLOR: In moving this Amendment the noble Earl has rightly said that Clause 15 affords to the Scottish Assembly the same protection as is given to Parliament; the protection in respect of proceedings in the Assembly of absolute privilege. We believe that is right. This is a legislative Assembly the Members of which will no doubt think it right to ventilate the evils that are to be remedied, and the protection of absolute privilege is quite crucial to the functioning, both of Parliament and of this Assembly.
The clause provides for the avoidance of doubt that both oral statements and written statements are protected and, in my submission, that is right. The publication of summaries is not similarly protected, as will he seen by subsection (2) of Clause 15, but, in my submission, there should be protected also the publication under the authority of the Assembly of any document. I cannot accept that written statements introduced into Assembly proceedings should not have similar protection to oral statements. Suppose, for instance, they are written answers to Assembly questions, if such procedure takes place within the Assembly —and I imagine it may well do so—and one can think of other documents of a similar character which will emanate under the authority of the Assembly which, I submit, ought to enjoy similar protection.
I do not know whether the noble Earl thinks it convenient to consider Amendment No. 71 at this point.
The Earl of SELKIRK: Personally, I should have thought not. It is a totally
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different Amendment which has nothing whatever to do with the first one.
The LORD CHANCELLOR: I was looking at the clock; it is seven o'clock.
The Earl of SELKIRK: We could discuss it afterwards if the noble and learned Lord is very hungry.
The LORD CHANCELLOR: I am perfectly happy to do so. I must not get at cross-purposes tonight, as I did on a recent occasion. I hope we shall maintain an attitude of sweet reasonableness in the course of debate.
My answer to the main point that is made is that it is right, in our submission, that absolute privilege should attend oral statements made in proceedings of the Assembly, and also written publications made under the authority of the Assembly and any written statements that may emerge. That is the protection that is provided in Parliament in those circumstances, and I think it right that it should be provided for the Assembly.
With regard to the question raised by the noble and learned Lord, Lord Hailsham, the Bill uses the phrase "proceedings of the Assembly" deliberately in order to attract the same weight of meaning as is attached to proceedings in Parliament. The same principles would apply as those which arc set out in Erskine May. It is not readily available to me, hut the principles are well known. There are problems, as I appreciate from the cases; I think Strauss v Electricity Board was one of the cases. The principles are well known, well set up. If I could have had notice of this and refreshed my memory I could no doubt set them out in a few minutes' exposition. At any rate, those principles which attach to proceedings in Parliament will also attach to proceedings in the Assembly and it is intended to give the members of the Assembly the all-round protection that Parliament and Members of Parliament enjoy. Happily, that includes Members of your Lordships' House.
Lord HAILSHAM of SAINT MARYLEBONE: Before my noble friend replies, I wonder whether I may ask the noble and learned Lord to consider a little more at his leisure the problem which I raised. I have not read Erskine May in the last

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few minutes, but I must tell the noble and learned Lord that when I did, which was not very long ago, I found it anything but well set out in Erskine May. The reason which prompted my question was not really based on Erskine May but on a rather interesting document which was published under the authority of the House of Commons some 10 years ago, when I was a Member of that body. There was a Select Committee, called the "Select Committee on Privileges" as distinct from "for Privileges", which discussed all these matters at rather considerable length. My recollection is that we did find the question of letters passing between Members of Parliament and Ministers—and by analogy, therefore, Members of the Executive visualised for this Assembly—an extremely difficult problem, and I do not know that we ever came to a very definite answer as to where they stood in the matter.
Of course, I appreciate that the expression "proceedings of the Assembly", as it is used in subsection (1)(a), was deliberately used so as to attract the analogy of Parliament, but my recollection is that the analogy of Parliament may prove rather contentious in the circumstances. I know that, if the noble and learned Lord either gives it his personal attention or deputes it to one of the many able persons under his command, we may, at the Report stage, get a little more elucidation, or perhaps he will write to me and put the answer in the Library.
The LORD CHANCELLOR: I am most happy to do that, if I may deal immediately with that point.
Lord WILSON of LANGSIDE: I wonder whether, before the noble Earl replies, the noble and learned Lord can also assist one less well versed in these matters than is the noble and learned Lord, Lord Hailsham. I find some uncertainty as to what is encompassed within the description of a written statement
"made in proceedings of the Assembly".
Lord HAILSHAM of SAINT MARYLEBONE: That is the whole point.
Lord WILSON of LANGSIDE: The noble and learned Lord suggested that it might cover reports of the proceedings
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in the Assembly. Well, of course, this I can readily appreciate and understand; but, when one reflects on this somewhat vague description of written proceedings in Parliament, one can envisage all sorts of writings passing through the Scottish Assembly. I have no difficulty in this. I wonder how many and what description of these might be covered by Clause 15(1)(a). If the noble and learned Lord could assist me on these matters, I should be very happy.
Viscount DILHORNE: May I ask the noble and learned Lord the Lord Chancellor, when he is looking at these matters at the request of the noble and learned Lord, Lord Hailsham, to perhaps be good enough to refresh his memory of the report of the Committee on Privileges in another place on the very question whether a letter to a Member of Parliament was the subject of privilege. My recollection goes back to a Committee on Privileges on which I sat which considered that very question. It led to a great debate in the House of Commons—the noble Lord may recollect it—where I think it was held by a majority of seven that no question of privilege was involved, but it was a very narrow margin. If the noble and learned Lord is looking at it, I would ask him perhaps to look at that report and at that debate.
The LORD CHANCELLOR: Certainly. I am afraid my memory is not very acute on these matters, which I dealt with both professionally and in the House when I held the office of Attorney. I will certainly refresh my memory, and if your Lordships desire me to return to it at some other point in time I shall be very happy to do so.
In reply to the noble and learned Lord, the written statements that are covered by absolute privilege would be written statements introduced into Assembly proceedings. Reports of proceedings are separately provided for and it is intended to cover such written statements as I mentioned by way of illustration—namely, Written Answers to Parliamentary Questions. However, I promise that I shall look into this point and give the matter further consideration.
The Earl of SELKIRK: I must admit that I do not get a great deal of satisfaction from the answer of the noble and

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learned Lord the Lord Chancellor. He started by saying that this was concerned with the avoidance of doubt. There are no such words here. This is a substantive law with nothing whatever to do with the traditions of Westminster.
Secondly, he said that the principles are well established. I commend the noble and learned Lord to the Second Report of the Joint Committee on the Publication of Proceedings in Parliament under Lord Donovan. This stated:
"Some of the questions the Committee had to consider are difficult and may prove controversial."
In other words, there are a tremendous number of loose and tag ends in the whole of this subject which have never been resolved. I contend that the word "written" goes right outside anything that exists in the traditions of Westminster.
The noble and learned Lord has referred to documents made by the authority of Parliament. He referred to Written Answers. That is only the beginning of the matter. The question is far wider than that—for example, letters from Members to Ministers and Ministers' replies. There is a vast area in which letters can arise. I hope that the noble and learned Lord will look into that matter.
My noble and learned friend Lord Hailsham of Saint Marylebone raised the question of proceedings. Where do proceedings start and end? If we go into the Lobby here and discuss a Bill that we have been talking about in the Chamber, will such a discussion be proceedings of Parliament? No one knows the answer to that. No one has asked. This has been discovered and I recommend the noble and learned Lord to read the report of Lord Donovan. These are difficult questions.
I do not want to press this point, but the noble and learned Lord said that what mattered was what was made by the authority of Parliament. I am not arguing about that. That is fully covered by subsection 1(b) . I am talking about subsection 1(a). I absolutely agree that that is well established although there is a great deal of uncertainty as to what is authorised by Parliament and authorised by various Government Departments. For instance, a Government White Paper is not covered. Certain reports which are
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submitted to Parliament are not covered because they are not authorised by Parliament. There are a great many loose ends. Will the noble and learned Lord look at this matter and say that, if it is well outside the Westminster tradition, he will see whether he can bring it inside the Westminster tradition?
The LORD CHANCELLOR: I shall certainly do so. I should have thought that this was well inside the Parliamentary tradition and the tradition of both Houses. I recollect giving evidence to the Donovan Commission, but certainly I shall refresh my memory about these matters and refer to the report. However, I am quite sure that this is well within the rules. The rules are rather vague at the edges and there is a certain amount of uncertainty on the fringe of these matters, but what is essential is that basic protection of absolute privilege should be given to Assembly proceedings. Those proceedings involve written communications and, of course, oral speeches. If we do not give the members of this Assembly that protection then we shall be denying them something which is essential for the proper running of this democratic legislative Assembly.
The Earl of SELKIRK: I am not arguing about the statement in the margin,
"Defamatory statements in Assembly proceedings."
I am arguing about something quite different. I shall not pursue this matter. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord STRABOLGI: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

FARM CAPITAL GRANT (VARIATION) SCHEME 1978
7.14 p.m.
Lord WALLACE of COSLANY Lord WALLACE of COSLANY rose to move, That the Farm Capital Grant (Variation) Scheme 1978, laid before the House on 15th March, be approved.
The noble Lord said: My Lords, this is a

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simple, short and straightforward Statutory Instrument which was laid before Parliament on 15th March 1978. Noble Lords may recall the undertaking my right honourable friend the Minister of Agriculture, Fisheries and Food gave on 2nd February 1978 that we would give extra financial assistance to farmers and growers whose land had been badly affected by abnormal floods this winter. The function of this Instrument is to give effect to this undertaking, which I am sure all noble Lords will recognise as a proper response to the situation.
Separate measures are required to put into effect the special aid for the replacement and reconditioning of damaged buildings, facilities and works announced by my right honourable friends on 22nd March and these will be dealt with separately. It is hoped to make the necessary order within about four to six weeks.
Noble Lords will no doubt have noticed that the Statutory Instrument was laid on 15th March 1978 and came into operaton on 16th March 1978. Its continuance is, of course, subject to the will of Parliament. No disrespect to Parliament is involved in bringing the Statutory Instrument into effect before there has been an opportunity for debate. The primary legislation, Section 29 of the Agriculture Act 1970, permits us to do this and our objective was to be able to make cash available as soon as possible for farms where land had been seriously affected by the abnormal flooding this winter. I need hardly remind your Lordships' House of the disastrous events of 11th-12th November 1977 in North-West England and Wales and 11th-12th January 1978 on the East Coast and in Kent.
With your Lordships' permission, I shall briefly outline what, if Parliament approves, the Statutory Instrument will do. It will allow us to give 50 per cent. grant (as opposed to the normal rates of 20 per cent. available under the Farm Capital Grant Scheme and 25 per cent. under the Farm and Horticulture Development Scheme) for bringing back land affected by abnormal flooding to its previous level of productivity. Grassland, arable land and horticultural land are covered both for cultivation operations and for the application of gypsum, lime and fertilisers
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and, for arable land, if the condition so merits, the keeping down of weeds while the land is in fallow.
Reseeding and regeneration of permanent grass and the clearance of flood debris—for example, shingle—from the land are also eligible. In addition, incidental operations such as repairing a flood bank to prevent future flooding or the erection of fencing—for example, to permit controlled grazing—will also qualify at the 50 per cent. rate. Land drainage and the clearance of ditches already attract the 50 per cent. grant and we are relaxing the administrative rules relating to second grants where work is now needed because abnormal flooding has affected the existing systems.
This is a United Kingdom scheme and we are taking advantage of Article 92(2)(b) of the Treaty of Rome, which allows special aid to alleviate the effects of natural disasters; thus these are not subject to the EEC's Farm Modernisation Directive. This means that the aids are not affected by the various restrictions contained in the Directive. One of these is a maximum amount of investment per labour unit which can qualify for grant, so that this limit will not apply to any of the work, including drainage and ditching, provided it is necessary in connection with the restoration of the land to its previous level of productivity. Neither will the limitations on investment aids for pig enterprises and the total bar on grant for egg and poultry enterprises apply.
In conclusion, I should like to emphasise three points. The Scheme is of limited duration—applications can be accepted only within one year of the coming into force of the Scheme—that is, until 15th March 1979. We have set this time limit because we are keen to encourage farmers and growers to get on with the necessary work. Secondly, it is concerned solely with bringing back to its former level of productivity arable, grassland or horticultural land affected by abnormal flooding —no improvements to that land can be grant-aided under this Scheme although the other capital grant schemes can still be used for the improvement of permanent grassland. Thirdly, under the terms of the Agriculture Act 1970, only work of a long term capital nature can qualify for aid. Routine husbandry operations are excluded.
As I mentioned earlier, the further measures needed to give effect to the Government's announcement on 22nd March of extra grant assistance to those farmers and growers who suffered damage from the severe blizzard this winter, will he introduced shortly. It has, of course, taken time to investigate and assess the damage caused and to work out the form the measures should take to be fully effective.
While I am on this matter I should like to pay tribute to all those who contributed to the massive relief work in the South West and Wales. I refer, for example, to the helicopter pilots flying in adverse conditions to drop supplies, to the bulldozer drivers clearing snow in difficult terrain and to all the others, including local and central Government officials who took part in the relief and other related work.
Although we have not yet been able to introduce the measures necessary to authorise the higher grants referred to in the announcement of 22nd March, we have waived the normal prior approval rule of the capital grants schemes. That means that those farmers and growers who suffered loss or damage in the blizzards can get on with the necessary work without prejudicing their right to whatever higher rate of grant Parliament may approve. I beg to move.
Moved, That the Farm Capital Grant (Variation) Scheme 1978, laid before the House on 15th March, be approved.—
[Lord Wallace of Coslany.]
7.22 p.m.
Lord SANDYS: My Lords, the House will be grateful to the noble Lord, Lord Wallace of Coslany, for outlining the background to this particular measure. On this side of the House we warmly welcome the proposals set out in the measure and join with him in his words of tribute to all those involved in the relief operation which took place during the past winter. What is very important is the relaxation of administrative rules and the action by those concerned in the Ministry to ensure that the handling of applications takes place as speedily as possible. Of course, we were particularly glad to hear that farmers and growers are permitted to proceed with works without receiving prior approval. That, of course, is fundamental to the Scheme.
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We welcome what the noble Lord has said in regard to the fact that this arises out of Article 92.2(b) of the Treaty of Rome. However, there is one further anxiety about which I should like to ask the noble Lord. Should further flooding occur at a later date—and we hope that it does not—will it he necessary to bring a similar order before Parliament? As we understand it, this will be necessary because of the very limited duration of this particular Scheme. On the face of it, I think that the level of grants appears sufficiently generous to merit very close attention by all those concerned, but we should like to know whether this is a Scheme which would have only the limited duration which we imagine that it has.
7.24 p.m.
Viscount AMORY: My Lords, I should like to welcome very much what the noble Lord, Lord Wallace of Coslany, and my noble friend Lord Sandys have said about the speed with which relief and help was given to local farmers in my part of the world during the recent blizzards. There was the minimum amount of red tape and the maximum amount of speed. I think that that fact was acknowledged very widely, not only by the farmers concerned but by the public at large. As the noble Lord, Lord Wallace, has said, that reflects very great credit on all those like helicopter pi lots and bulldozer drivers.
The information which I received and experienced at first hand was that relief was given straight away, as rapidly as possible, and the question of who should pay, and how, was left to be considered after the event. I was only tantalised by the number of helicopters that flew over my small property without decanting anything in the way of foodstuffs. I could see showers of various things being decanted on my neighbour's property. As I suffered no loss myself, I could not complain.
Baroness ELLIOT of HARWOOD: My Lords, I should also like to thank the noble Lord, Lord Wallace of Coslany, for this admirable order. Speaking as the only Scottish farmer present, I should like to say that we are most grateful for it. The damage that took place in Scotland was largely due to snow and blizzards in the North. I imagine that that will be the subject of the next order: I understood the

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noble Lord to say there would be a second order. I am quite sure that those who suffered from the flooding, of which there was a certain amount in the Selkirk area, will be extremely grateful for the order. It is very encouraging when there is such a rapid response to the extraordinary weather conditions that we have experienced this winter—indeed, noble Lords experienced snow this week. The Government are to he congratulated on the fact that they have taken steps so quickly. I hope that this will bode well for the reconstruction of agriculture which we hope will come as a result of these orders.
7.26 p.m.
Lord WALLACE of COSLANY: My Lords, I am very grateful indeed to the noble Lord, Lord Sandys, and to the noble Viscount. Lord Amory. I am sorry that we did not drop any additional supplies on the noble Viscount's property, but as he did not need them it is all right. I hope that the helicopters did not disturb his rest—at least they were on a very urgent errand of mercy. I should like to thank the noble Baroness, Lady Elliot of Harwood, for her references and welcome to the Scheme. I am convinced that in the Administration there is a desire to get on with the job and to give what possible assistance can be given to farmers and others concerned.
The noble Lord, Lord Sandys, was concerned with buildings. A new order will be introduced to cover that. I have the figures before me, but I shall not delay the House with them now. There will be a considerable increase in grants. In one case permanent buildings on lowlands will receive 60 per cent. as against 20 per cent. to 40 per cent. previously, and less favoured areas will receive 60 per cent. as against the usual 20 to 40 per cent.; they are very good grants.
So far as further flooding is concerned, at the moment there is no need for a new order while applications are received by 15th March 1979. From that I would assume that after that date if we have any further disasters—and let us all look forward to some decent weather at least next year, if not this—a new order might have to be made. Until then, certainly no further order is anticipated. I think that that covers all the points that have been raised.
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I thank noble Lords and the noble Baroness for the welcome given to this order.
On Question, Motion agreed to.
Lord STRABOLGI: My Lords, I beg to move that the House do now adjourn during pleasure until 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[Sitting suspended from 7.28 p.m. until 8.15 p.m.]

SCOTLAND BILL
House aeain in Committee on Clause 15.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 71:
Page 7, line 25, after ("it") insert ("which is fair and accurate").
The noble Earl said: We are still dealing with Clause 15, defamatory statements in Assembly proceedings. We now come to subsection (2), which deals with the question of abstract reports or summaries from publications from Parliament. At the present time, as the Bill is drafted, you can make any report from Parliament unless it is proved to be made with malice. I suggest that that is much too wide a limitation. That means, in effect, that anyone can make statements which are inaccurate, are misrepresentations, are scandalous, or indeed degrading of Parliament. There ought to be a slightly higher standard than is required simply by the word" malice
It is a delicate matter for a reporter, but I suggest that there should be added to Clause 15(2) the words "which is fair and accurate ". The noble and learned Lord the Lord Chancellor has emphasised, and I think it is the object of the Government, that so far as may be we should present in this clause what is the current procedure in Westminster.
This concept was introduced by the Act of 1952, which brought radio into substantially the same lines as the Printed Papers Act 1840. Incidentally, I take it that the word "privileged" in subsection (2) is meant to be qualified privilege as opposed to absolute privilege. If a report is fair and accurate, and of course made without malice, then it is entitled to

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qualified privilege. But, as it stands, there is a wide margin where much damage, much degradation can be made in a Parliamentary report, which is particularly referred to here, unless something of this character is put in.
I hope that the Lord Chancellor will be able to give us a rather better picture than he did on the last Amendment, though this is an entirely different question. I must, in fairness, say this because this is quite an important matter. This raises the whole question of the manner in which public reports will be made, whether by radio or newspapers, on the proceedings which take place in Parliament. The official report which will be authorised by the Assembly, or Convention, or whatever we call it, will of course, as has been said already, have absolute privilege, as Hansard has today. But if extracts are taken from it, then they must be fair and accurate. That is the position existing today at Westminster.
May I again venture to refer to Lord Donovan's second Report, page 13, paragraph 36. It says:
"If any person publishes an extract from, or abstract of, such official report "—
that is, presumably, Hansard in some cases—
"such report is fair and accurate, he shall be entitled to qualified privilege in respect of such publication."
This would seem to be the position not only under Section 3 of the 1840 Act but also under common law. I think it is absolutely essential that it should be put into this Act, otherwise the position will be left right open. Anybody will be able to report what they like and obtain qualified privilege so long as malice is not proved. I am sure that the noble and learned Lord Chancellor is in no doubt about how difficult it is to prove malice. It means that someone may go a very long way without having malice proved. I suggest, with great respect, that to ensure that this Assembly is reasonably presented to the public these proposed words are absolutely essential. I ask the noble and learned Lord Chancellor to accept the Amendment which I now move.
8.21 p.m.
The LORD CHANCELLOR: This Amendment deals with abstracts from, or summaries of, publications made under
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the authority of the Assembly. If a document is published arising out of proceedings of the Assembly, that document is protected by absolute privilege. But the publication of an abstract from it, or a summary of it, is only protected, as the noble Earl said, by qualified privilege, which is the same protection that is given to the publication of an abstract from, or summary of, an official Parliamentary paper. It is given qualified privilege. Clause 15(2) gives such abstracts from, or summaries of, official papers of the Assembly the same protection. However, the safeguard in regard to defamation that is provided is the provision that, if the publication is proved to be made with malice, then of course the protection falls.
It is the case that in the Defamation Act the words that are found in the noble Earl's Amendment do appear— "fair and accurate "—as additional elements required to establish qualified privilege. But those words appear in relation to unofficial newspaper statements reporting the proceedings of the Assembly, whereas the documents with which we are dealing are of a different character. They are summaries or abstracts published under the authority of the Assembly itself and have that official provenance.
Therefore it would seem to me, with respect, that it suffices, in respect of those and that the provision that malice takes away the protection would seem to be reasonable. Indeed, if such an abstract of, or summary from, an official source was not fair and accurate it is very likely that the intention behind it was malicious and that malice would therefore be capable of proof. That is the explanation of the difference.
The analogue to the provisions of the Defamation Act is to be found in paragraph 12 of Schedule 16, which noble Lords will sec at page 82 of the Bill; whereas your Lordships will see in paragraph 12 at page 82 that the Defamation Act of 1952 is amended to deal with the area of newspaper reports; and after paragraph I of the Schedule—this appears in paragraph 12 at page 82—there should be inserted the following paragraph:
"A fair and accurate report of any proceedings in public of the Scottish Assembly".
I have endeavoured to explain the reason why those wider words exist there. They relate to unofficial newspaper statements,

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whereas Clause 15(2) is intended to cover a different kind of publication; namely, abstracts or summaries from Assembly papers. I hope that in the light of that explanation the noble Earl may feel satisfied with the matter. However, I do not want to be dogmatic about this. This is not easy territory, and I am very willing to look at it again.
Lord HAILSHAM of SAINT MARYLEBONE: The last thing that anybody would wish is to be dogmatic about this rather difficult and technical subject. But I am wondering whether we have thought this through deeply enough. Perhaps the noble and learned Lord will reflect upon it, it' my noble friend withdraws this Amendment. I do not know whether he is disposed to do so.
I am slightly troubled about the words in the Bill as it stands. I agree that the words "fair and accurate" appear to be drawn from something which is rather different. I think that the noble and learned Lord has established that by reference to a later page. But what is a summary, and what is an abstract? Supposing that I, being the editor of a newspaper, publish what purports to be a summary of a document, which is a document covered by Clause 15(1)(b), that is to say a document published under the authority of the Assembly; and supposing I put in something which never was in the document.
I am not talking now about malice. I am talking simply about the mistakes which those of us who have practised in the newspaper world and in the law know are being made every day owing to the speed at which newspapers must he produced. Therefore I am not talking about malice. I am talking about a mistake. Is what purports to be a summary, but which contains something that is not in the report and is therefore not accurate, a summary at all? I am not sure that it is as easy to decide that as might appear at first sight.
I can see courts either leaving it to a jury, which is a very good way of not answering questions, or, if the presiding judaes were sitting alone, spending hours on a debate of this kind. I can see, if they did leave it to the jury, a great deal of learning as to what was capable of being
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a summary would be necessary in order that it might be left to the jury. Supposing we take the contrary position. The first position which I put to the noble and learned Lord is, supposing they put in something which is not there, an added "not" perhaps—
The LORD CHANCELLOR: May I ask the noble and learned Lord for enlightenment of what he is saying. This provision relates to official reports. It does not deal with newspaper reports, with great respect. I thought that he was addressing his mind to newspaper reports at the time. Those relate to official publications of the Assembly. That, I submit, is the difference which justifies the difference of language. I do not know whether the noble and learned Lord was addressing himself to the point to which the clause is directed.
Lord HAILSHAM of SAINT MARYLEBONE: I do not want to be dogmatic about this, but I sincerely believe that the noble and learned Lord is wrong, and I will read to him the provision which, he says, refers to official reports of the Assembly. For this purpose, it is necessary to look back to subsection (1)(b) where it says that what shall be absolutely privileged is the publication under the authority of the Assembly of any document. We are not talking about that, but we have to look at that first in order to look at subsection (2), which we are talking about, and which says:
"Where the publication of any document is privileged by virtue of subsection (1)(b) of this section."
That means where the publication of the document as a whole is absolutely privileged—that is to say, the publication under the authority of the Assembly of any document in toto is absolutely privileged. It goes on:
"the publication of any abstract from or summary of it is also privileged, unless the publication is proved to be made with malice".
What it does not say it covers and what the noble and learned Lord suggests it means, though I respectfully disagree with him, is publication under the authority of the Assembly of any abstract or summary. If the noble and learned Lord will consider the matter, I think he will see that it is plain beyond peradventure.
I had first of all put to the noble and learned Lord the question as to what

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would be the position of what purported to be a summary which put in something which was not there—for instance, an inter-gallery nod—which I have known to happen, even in official documents. But suppose the authors omit something which is vital and which is there. What is the court to say about that? Is it an abstract? I should doubt it. Is it a summary? I should doubt that. It is a distortion, and what is the court to say about distortions, whether by way of commission (the insertion of what is not there) or of omission (the omission of what is vital and is there)?
I do not think the noble and learned Lord has delved deeply enough into this problem and I am bound to tell him that, although the last thing I want to do is to bandy words and be dogmatic about this, I think that, when he said to the Committee that the publications to which subsection (2) refer had to be publications of summaries under the authority of the Assembly, he was—I say this with the greatest respect to him—in palpable error.
The LORD CHANCELLOR: I am of course willing to look at this again. What I said was my understanding of the matter. If it is not intended to be confined to summaries or abstracts with an official imprimatur, then I agree that there is great force in what is being said, and then, from the point of view of placing the matter ex abundanti cautela, it might he a good protective mechanism to add the words which the noble Earl has suggested. I am very willing to look at this again and to revert to it. I see the noble and learned Lord, Lord Diplock, who is a great authority in this domain, rising to his feet and I gladly give way to him.
Lord DIPLOCK: Unlike the noble and learned Lord, Lord Hailsham of Saint Marylebone, I am prepared to be dogmatic about this. The subsection is not confined to summaries published under the authority of the Assembly. It does, as at present drafted, include summaries published by newspapers in the ordinary way and it is possible that such a summary might be tendentious. I venture to think that the clause would be much improved by accepting the Amendment proposed by the noble Earl, Lord Selkirk.
The LORD CHANCELLOR: I am quite willing to do that and it may well he that, at the end of the day, I shall find that, not for the first time, apparently, I have been in error.
The Earl of SELKIRK: If, as I understand it, the noble and learned Lord is accepting my Amendment, I shall not make the remarks I should otherwise have made.
The LORD CHANCELLOR: What I said was that I will look at it again if the noble Earl is prepared to leave the matter there. I am not sure whether he was being gracious or was not going as far as that.
The Earl of SELKIRK: I always seek to be gracious to the noble and learned Lord, and indeed to all Lord Chancellors if I can. He talked about unofficial newspaper reports, but what will the reports be? They will be comments on Hansard; that will be the normal sort of thing. They will write what they like. It is not a question of putting in new things, if I may, with respect, tell the noble and learned Lord so; it is collecting together all the nasty things. I remember that when I was a student in Germany I saw a book which they circulated containing all the horrid things said about this country by people like Bernard Shaw and others. Seeing them all together in one book, one might have thought that this was a nation of the most appallingly depraved character. That is what I have in mind; one can collect pieces from Hansard which can give a total distortion, yet every one of them may well appear in Hansard. That is precisely the sort of thing I have in mind.
The noble and learned Lord wants to copy the Westminster pattern. Has he read the 1952 Act on defamation? The point is dealt with quite specifically there. I wonder whether he has read Part II of Lord Donovan's Report, where it is dealt with quite specifically. I cannot understand the difficulty which the noble and learned Lord appears to have. This is a normal safeguard for the Scottish Assembly—the Convention, call it what you will—and surely the noble and learned Lord is able to accept the Amendment. To do so would not damage the Bill or in any way affect Party relations.
The LORD CHANCELLOR: I certainly do not think it would affect Party relations; these matters are not Party questions and I hope that that element will not be infused into our debates, as it seemed to be on a recent occasion. In the circumstances, having in mind the authority of the noble Earl himself, the certainty of the noble and learned Lord, Lord Diplock, and the unusual restraint directed to the same end by the noble and learned Lord, Lord Hailsham, I am disposed now to accept the Amendment.
Lord HAILSHAM of SAINT MARYLEBONE: The noble and learned Lord must mean the "customary restraint".
The Earl of SELKIRK: I wish formally to thank the Lord Chancellor most warmly for what he said.
On Question, Amendment agreed to.
Clause 15, as amended, agreed to.
Clause 16 agreed to.
Clause 17 [Scottish Assembly Acts]:
8.38 p.m.
Lord MORRIS Lord MORRIS moved Amendment No. 225:
Page 7, line 33, at end insert ("which shall have been passed before the Assembly is in being.").
The noble Lord said: Although I intend to speak to this Amendment very briefly, I do not wish it thought that by so doing the principle behind it lacks substance. On the contrary, I believe it to be fundamental. I shall be brief solely because it is a simple point and, as such, deserves simple treatment. The Amendment is intended to entrench the Government's view that nothing in this Bill will affect the unity of the United Kingdom or the supreme authority of Parliament.
Clause 17(2) as it stands sets the Scottish Assembly in direct contention with Westminster. The Assembly, by virute of this subsection, could pass an Act, which Act Parliament could reverse, which in turn the Assembly could repeal, which Act could be further repealed by Parliament, and thus initiate a hideous game of Parliamentary ping-pong which nobody could possibly win. Both Parliament and the Scottish Assembly would thus be
736
brought further into disrepute, a position which is manifestly absurd. The Amendment maintains the supreme authority of Parliament by limiting the right of the Scottish Assembly to amend or repeal only that legislation which is extant prior to the Assembly's formation. I beg to move.
Lord WILSON of LANGSIDE: I would support this Amendment. I am intrigued to observe that in the Marshalled List my title, such as it is, has been presented in an Anglicised form: "Lang" has become "Long". The only conclusion I can draw is that there is, among the printers, perhaps a disgruntled Scottish nationalist who wants to expose me in my true colours. As the noble Lord, Lord Morris, has said, the immediate point in the Amendment is a short, sharp one, but it raises questions of fundamental importance, and some of the questions which have led those of us who are inclined to oppose the passing of the Bill to do so. Clause 17(2) provides that,
"A Scottish Assembly Act may amend or repeal a provision made by or under any Act of Parliament."
The only limit is that the matters with which the Assembly Act must be concerned are matters within the legislative competence of the Assembly.
It is surely understandable that if it is thought appropriate to devolve legislative power within certain areas, that power should include power to amend the preexisting statutory provisions. But surely it is quite extraordinary to extend that power to any enactment of the sovereign Parliament, albeit limited to those matters which lie within the legislative competence of the Assembly. Surely future Acts of the sovereign Parliament should be sacrosanct, and capable of repeal or amendment only by the sovereign Parliament.
Last night the noble and learned Lord the Lord Chancellor, in his speech in reply to the Amendment of, I think, Lord Monson, emphasised that Parliament, as it exists now, remains sovereign. What Parliament gives, he said, Parliament can take away. Surely it is strangely inconsistent, if not uniquely inconsistent, with that to hand over not only power to legislate in certain areas, but power to over-rule the sovereign Parliament. Surely this is a recipe for conflict and confusion;

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and it is concern with the possibilities of conflict and confusion that has led many of us from the beginning to oppose the Bill. That it is such a recipe is so obvious as scarcely to be capable of elaboration.
I should have thought that if the Bill becomes law, future Acts of Parliament would surely take account of what is devolved and what is not devolved. There is also the question of the sovereign right to legislate in relation to devolved matters or in relation to borderline cases, which it is not inconceivable might arise under the somewhat extraordinary Schedule 10 (with which we shall be dealing in due course) and which raises such a wide range and variety of matters, from the control of stray dogs to the administration of ancient monuments.
I should like to add a few words in relation to some of the general points made against those of us who have been critical of the Bill and of the clauses. I take, for example, what was said by the noble Lord, Lord Brown; I am sorry that he is not here tonight. I thought that he suggested that if we continue with this rather nit-picking approach—if I may use so crude an expression—through the clauses in the measure, we would suffer the same kind of fate as was suffered by this country in relation to the Irish problem in the 19th century. He said, in effect, as I understood him, that we should remember Ireland, and that the nationalists would get us if we did not watch out.
I believe that it is very misleading to draw anything from the experience in Ireland in the 19th century in terms of relevance to the present situation and problem in Scotland. It would be neither relevant nor considerate to try to explore that here. It may be that it would be appropriate to do so on Third Reading. But I content myself with saying that I think it is very misleading to suggest that there is a useful guide in what happened in Gladstone's time in 1880, and the years before and after, to what our approach should be to the problem in Scotland today.
I understood the noble Lord, Lord Brown, also to deprecate what he suggested was the rather negative attitude of the critics of the Bill and of the provisions in the clauses. I think that the noble
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and learned Lord, Lord McCluskey, on Second Reading, tended to express a similar view. He said that he deprecated what he called. I think, the negative and destructive attitude of the opponents of the measure. He said this, if I may say so, without disturbing the concordat which has been established with the noble and learned Lord and the Opposition today, rather loftily. Surely the onus is on the Government to establish to the satisfaction of Parliament that they have got it right. The noble Lord, Lord Harmar-Nicholls, in dealing with another Amendment yesterday, emphasised those matters to which it was essential to have regard if a constitutional measure was to be successful. To the matters to which the noble Lord, Lord Harmar-Nicholls, referred I would add the question of stability. Surely that is an essential quality for the success of any constitutional measure.
I hope that in what I have said in relation to this clause, and in what arises from the Amendments moved by the noble Lord, Lord Morris, we have another illustration, if further illustration is needed, that constitutional stability is not what is going to be provided. I do not know how the noble and learned Lord, Lord McCluskey, will answer the Amendment, but in closing I express the hope that his answer will be more effective than that given by the Minister of State in the other place when a somewhat similar Amendment was moved. He said at the outset—and I quote from column 271 of the Official Report for 29th November—when an Amendment to similar effect had been moved:
"Before the hon. Member impales himself too firmly on the horns of a dilemma, I must say to him that if this Parliament wished to repeal an Act of the Scottish Assembly it could entrench the position and ensure that it could not happen again."
In conclusion, I can only say that I hope the noble and learned Lord's answer tonight will be more effective than that, because, if it is not, I would hope that the Committee might wish to divide on this issue.
Lord McCLUSKEY: As I am invited to reply on this, perhaps I should try to put the matter as briefly as I can. First of all, perhaps I may direct attention to another Amendment, No. 76, where I think points which are related, though

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different, may be raised. They are raised in the context of Clause 18, which is concerned with legislative competence, and it may be that certain of the matters which concern the two noble Lords who have spoken will arise there and we can discuss them more fully there.
In relation to this matter, may I say that the whole point of devolution is to allow the Scots to manage their own affairs to the extent set out in the Bill; and the Bill defines with great precision—indeed, some people fear with too much precision, but certainly with great precision—what it is that the legislative Assembly in Scotland may do. Its competence to legislate is, as I say. defined with great precision. Legislative competence within what is devolved embraces the power to adopt existing legislation, to amend existing legislation or to scrap existing legislation and replace it with something quite different. To deprive the Assembly of any power to amend or repeal Acts of Parliament passed after devolution would operate, in our view, as a large, vague and dangerous derogation from devolution.
Let me put the argument in a nutshell. I hope it will satisfy the noble and learned Lord, Lord Wilson, though, from what he has said, it may not. The Assembly is to have legislative competence in relation to devolved matters. When we come to Clause 18 and the related Schedule, we shall see that; and I hope that that will be discussed at length when the noble Viscount, Lord Colville, moves his Amendment, and indeed when we discuss Clause 18 in general. If, after devolution, the Westminster Parliament passes an Act of Parliament on a devolved matter, this will usually be by agreement with the Scottish Administration, who need not therefore be prevented from amending it later. But, if for some reason it is intended here in Westminster to pass an Act which relates to a devolved matter and to protect the provisions in the Act which deal with that devolved matter from being amended by the Assembly, then there is no problem whatsoever in so writing that Act that it itself provides explicitly whatever protection is intended—and I am happy to notice that the noble Viscount, Lord Colville, is nodding his head in agreement with me. There is no
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problem in that, and it is well precedented. I am sure I do not need to give to lawyers of distinction, including the noble and learned Lord, Lord Wilson, and others, a great list of precedents on that; and if I am wrong the Committee is full of noble and learned Lords who will contradict me.
The consequence of accepting these Amendments would be that virtually all Acts of Parliament which deal with or touch on devolved matters will require stock provision to the effect that, notwithstanding the Amendments sponsored by the noble Lords, Assembly Acts may amend or repeal their provisions so far as they deal with matters falling within the Assembly's legislative competence. And, even in those probably rare cases where protection is wanted, something a great deal more sophisticated than this Amendment to Clause 17, which I suspect is the wrong clause, would surely be needed. The Amendments would therefore be ineffective where protection is wanted, and perhaps an irritant where it is not.
I shall give just one example in case that rather generalised explanation is not clear to those who are not lawyers. It may well be that, subsequent to the passing of this Bill and its arrival on the Statute Book, the Westminster Parliament may choose to consolidate a number of statutes, some of which contain provisions relating to devolved matters. Now the two noble Lords who have spoken would not have challenged, and do not challenge by this Amendment, the competence of the Assembly to alter the Act which has been consolidated, but they challenge the competence of the Assembly to alter the consolidated Act. That is a plain instance, and I think one which lawyers and non-lawyers alike can understand. If I am wrong, I sincerely hope that the noble and learned Lords who have been listening to this argument will contradict me. I would ask the two noble Lords to reconsider the position and certainly not, as I understood from the noble and learned Lord, Lord Wilson, threaten to divide the Committee at this time of night and in these circumstances.
Lord HAILSHAM of SAINT MARYLEBONE: I certainly do not want to contradict the noble and learned Lord; and, equally, I share his desire that this matter should not, at any rate at this stage

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of the Bill, be pushed to a Division. Nor do I want to anticipate what my noble friend Lord Colville of Culross (on whom I was very glad to see the noble and learned Lord had bestowed a silk gown only the other day) will say about his second Amendment. I am inclined to agree, I must say, with the noble and learned Lord, Lord McCluskey, that, in the form in which the Amendment moved by my noble friend Lord Morris is tabled, it would be destructive in practice of one of the main purposes of the Bill.
I think that is right; because, as time goes on—and we have seen it happen, have we not, in relation to the North America Act 1867?—the law as it existed at the time of the passing of the Act, and therefore, for this purpose, at the time of the creation of the Assembly, diverges more and more from what it was. That is inevitable. It has become an accelerated process nowadays, when we pass over 3,000 pages of legislation a year. Therefore, it is in practice, or it would become in practice after five or six years, totally impossible for the Assembly to carry on any kind of legislative activity at all within its devolved sphere if in fact it did not have the power to amend Acts of Parliament which had been passed in the interval; and, if the thing really lasted for 100 years, like the North America Act 1867, the situation would become perverse to the point of being intolerable. So I think the noble and learned Lord, Lord McCluskey, made an absolutely valid point when he said that.
But there is an underlying difficulty which I am not sure the Bill, either as it would be amended or as it is now, deals with. It is this. It is very easy to say that a legislative Assembly has the power to amend or repeal Acts of Parliament. Of course, if they intend to do so and say that they are going to do so—if they say, "This Bill repeals or amends such and such an Act of Parliament in the following respects"—it is very easy to see what they have done; but it is extremely difficult in practice, as noble and learned Lords on the Cross-Benches will recognise, to know what is intended when it is done by mistake or by inadvertence. All the time one is asking oneself whether subsection (3) of Section 4 of Act No. 125 has amended paragraph (d) of subsection (3) of Section 42 of Bill No. 102, passed ten years before.
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There must be, I think—and it is one of the major troubles of our legislative process at the moment—some guidance given to the courts as to what is to happen when two Acts are found to diverge in practice as a result of a situation which has subsequently occurred after the passing of the second Act. This is not at all an infrequent occurrence.
In fact, this is difficult enough when dealing with Acts of Parliament at the same Assembly in Westminster but when there are two separate Legislative Assemblies at work concurrently, I think it is going to be a very difficult matter unless it is dealt with absolutely plainly and spelled out in the legislation. This is one of the difficulties that one constantly finds in the argumentation about human rights. Is an Act of Parliament intended to abrogate a human right? Obviously, if it intends to do so and says so in plain language then the courts have no difficulty. If it does so by mistake and the courts are being asked to say that it did intend to do so by implication, then the matter becomes extremely difficult.
The trouble about all legislation is that it acts prospectively except in the rare cases where retrospective legislation is introduced. The trouble about all litigation—and the courts will be discussing litigation if this Bill comes into law—is that it always acts retrospectively, after a situation has occurred. It is absolutely impossible, in my experience, with all the wisdom of the Parliamentary draftsmen and all the skill of Ministers and all the apparatus of Committees, to foretell in detail the actual case which is going to happen. And when the actual case occurs the judges—poor dears!—must then look at the Acts of Parliament and try to make sense of them. Sometimes they get it wrong but occasionally they get it right. I am sure that some of them would much prefer to be told on what principles they were supposed to act.
Lord McCLUSKEY: Before the noble and learned Lord sits down, would he agree that the serious point that he made latterly is a point which we can probably discuss in the context of Amendment No. 76?
9.3 p.m.
Lord WILSON of LANGSIDE: Might I intervene before the noble Lord, Lord

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Morris, indicates whether he wishes to depart from this Amendment. I see the force in what the noble and learned Lords, Lord McCluskey and Lord Hailsham, have said. This matter must be considered in the context that the Government have said—and have repeatedly emphasised; and, indeed, at one time had a clause in the Bill which said—that the sovereignty of Parliament would not be impaired. How can you say that the sovereignty of Parliament is not impaired if, in effect, you have set up what was described in the other place as a "rival Parliament"?
Let me point to the illustration which was given in the other place. Supposing you have an Assembly at Edinburgh dominated by the Labour Party (of which for many years, over 40, I was a member) determined to abolish the provisions for private health and private education—quite a possibility. On the other hand, you have a sovereign Parliament dominated by the Conservative Party determined in the opposite direction: that private education and private health facilities will be extended. What is going to be the outcome? There is no use the Government saying, "You are just foreseeing difficulties. We cannot provide a perfect Bill. There will always be difficulties and problems and we shall have to iron them out." That is not good enough.
This is a position in which the Government have said that Parliament is sovereign. I can quite understand and have some respect for the position of the Scottish Nationalists. In that situation, they say, "If the Scottish people want it, then they should have no private education and no private arrangements for the care of health." That is an understandable position. What I find impossible to understand is, on the one hand the Government assuring us that the sovereignty of Parliament is unimpaired when, manifestly, what they are doing is setting up, as I have already said—and I will not say it a third time—a rival Parliament. That is the only point I want to make. It is for the noble Lord, Lord Morris, to decide whether or not he will withdraw his Amendment.
Lord McCLUSKEY: I hope that in deciding he will take the true view of the nature of sovereignty. The concern here
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is with legislative sovereignty. There is no doubt that there is nothing in this Bill which detracts from the competence of the United Kingdom Parliament to pass a provision—and I am not trying to draft it —to say: "Notwithstanding anything contained in the Scotland Act 1978 the Scottish Assembly shall have no competence to repeal the provisions contained in Section 1, Section 19 and Section 24 of this Act." As I say, I am not trying to draft it, but it is obvious to any lawyer that that can be done. There is no attack on the sovereignty of Parliament. Subject to the point raised by the noble and learned Lord and by Amendment No. 76, we will come back to this. I hope that the noble Lord, Lord Morris, will not feel disposed to press this matter in the light of these explanations.
Lord WILSON of LANGSIDE: I have implicit knowledge of what the noble and learned Lord, Lord McCluskey, has said. What I say—and what those who oppose the Bill, largely on the same grounds as 1, say—is that this will inevitably lead to conflict. Consider what the reaction in Scotland will be in that situation.
Lord MORRIS: I am grateful to the noble and learned Lord, Lord McCluskey, for his assistance. May I ask whether he will be good enough to show his hand with regard to Amendment No. 76?
Lord McCLUSKEY: I cannot even find the papers in relation to it.
Lord MORRIS: I refer to the Amendment tabled by my noble friends Lord Colville of Culross, and Lord Mansfield. Should he feel able to agree to this Amendment, this will emasculate Clause 17(2) and, in view of that, I should be happy to withdraw the Amendment.
Lord McCLUSKEY: Sufficient unto the day is the goodness thereof. I shall deal with Amendment No. 76 when I reach it. I notice that the noble Viscount, Lord Colville of Culross, shook his head in disagreement at the suggestion that the Amendment would emasculate anything in the Bill. I do not think that; he does not think that. I do not propose to search through my folders for an Amendment which I predict we shall be arriving at on Tuesday afternoon the 18th April 1978.
Lord MORRIS: In view of that I shall be happy to withdraw my Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 72 not moved].
9.8 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 73:
Page 7, line 40, at end insert ("except on the grounds that the provisions of standing orders made under sections 23, 25, 27 and 28 below have not been complied with").
The noble Viscount said: We are all very anxious to get on to the meat and substance of Clause 18, and we are all longing to hear the noble and learned Viscount, Lord Dilhorne, and the noble Lord, Lord Home of the Hirsel. But perhaps we may pause for one moment on the provisions of Clause 17 (4). I hope,if I may say so, that this is not picking a "Wilsonian nit". It is calling attention to the status that has been accorded to certain—and only certain—standing orders under the Bill. I am by no means in favour of litigation about the way in which the Assembly chooses to pass its legislation or indeed its subordinate legislation, if we must have such a thing.
I would not myself have joined in an Amendment to leave out subsection (4); but what I find a little strange is that the Government have chosen in Clauses 23 to 28 to spell out specifically particular provisions for standing orders and to make them compulsory. It is perfectly plain from the drafting of those clauses that the standing orders that are there specifically mentioned are not to be the totality because they are only a selection. But why have they been picked out? If they have been picked out in the Bill, do they not automatically attain a certain status which will not be accorded to other standing orders that are going to be made, presumably by the inherent jurisdiction of the Assembly itself?
If they are so important that they require to be specifically stated in the Bill, why so? What is to be the juridical effect of so doing? They are indeed, I would have thought, very important matters, but they cannot be the only important matters that are to be dealt with by standing orders. It therefore occurred to me that there was some particular significance in them which caused the Government to consider
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it to be necessary to state them particularly in the way that they have. If that is so and if we are, for instance, to have a provision in Clause 27 that money provisions in Scottish Assembly Bills must have the authorisation or recommendation of a Scottish Secretary and, for one reason or another, such recommendation is not granted and the Bill is passed, is the drafting of the Bill correct in saying that that matter, having been required as a matter of law in Clause 27, is nevertheless to be totally disregarded in the event, it the standing order is not complied with? I hope that the noble and learned Lord sees my dilemma in this matter.
I should not have had any difficulty with Clause 17(4) if the provisions as to standing orders had been wholly general. If they had said: "The Assembly shall make standing orders to govern its proceedings", then I should have thought that Clause 17(4) was wholly acceptable. But that is not so if there is a statutory requirement that certain procedural matters shall be complied with, as is the case at present in these clauses. Pecuniary interests are no doubt a difficult but nevertheless essential matter. That matter is dealt with in local government legislation. So be it. But why pick this one out? What happens if the whole thing goes wrong and if there is corruption? Heaven forfend that such a thing should occur!
Those are two examples which I have picked upon where, under the way this Bill is drafted, something would be expected to happen if standing orders are not complied with because it is a special standing order. I put this Amendment down to test the situation and to see whether the Government can explain why they have picked these particular subjects out for standing orders, and what they suppose is going to be the effect of non-compliance with the standing order so provided statutorily. I beg to move.
9.12 p.m.
Lord McCLUSKEY: May I first of all deal with the general effect of a provision on the lines proposed by the noble Viscount and the noble Earl, Lord Mansfield, in Amendment No. 73. The Government's intention (which I think is plain) is that Assembly Acts should be susceptible to post-assent judicial review—that is the matter that we will be con-

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sidering shortly—but only on the ground of vires. It is thought that it would not be in the public interest if, as the Amendment would seem to involve, an Assembly Act could be struck down—and I do not want to make any technical points—during a period of years after it had been passed, simply because, for example, a Member had taken part in a debate without disclosing his pecuniary interest.
Of course, it is important that these standing orders should be complied with, but the degree of uncertainty which would be created in relation to the standing and legal effect of measures which have been passed and which were susceptible to this kind of challenge would be out of proportion to the importance of not complying with a standing order. I may say—again, I am not seeking to make a technical point—that No. 28 is perhaps the odd one out because, although the others are mandatory, 28 is purely permissive. There is a related point.
Viscount COLVILLE of CULROSS: With respect, the reason why I put in 28 was that it brings in a collection of complicated machinery under the 1936 Act, and if something went wrong with that I was suggesting that implicitly we had a standing order which had not been complied with.
Lord McCLUSKEY: It was wrong of me to treat the Amendment as anything other than a probing Amendment, so I will not seek to make any other point of that kind. May I mention, however, that this kind of Amendment would allow—would it not?—the possibility, as we have seen in at least one case in recent years, of an attempt to interdict or, to use the English term, to take an injunction against the legislative body before it reaches the stage of passing the Bill: in other words, to stop proceedings taking place. That would be highly unfortunate and would lead to a lot of litigation and a lot of uncertainty.
On the general point of post-assent judicial review, I may say that the Government have taken the line which is manifested in the Bill. It has been criticised even for going so far and it would certainly be criticised for going to the extent of allowing the measures of the Assembly to be challenged on this kind of ground. It would have been possible for the Bill to
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contain model standing orders—perhaps not even model standing orders but to say, "These are the standing orders and the Assembly shall have them until they choose to alter them", or something of that kind. That method was not adopted, but the view was taken that standing orders were essential and one had to make provision for them.
The view was also taken that certain matters were of such importance that they should be made mandatory. The mandatory standing orders are those required by Clauses 7(1), 23, 25 and 27 for essential matters. They make explicit those things which are seen to be imperative. I should draw attention to Clause 7(1), which is the important one that makes it clear that the Assembly has power to make standing orders. It also contains the provision that we looked at earlier, allowing the Secretary of State to give directions for regulating its procedure pending the making of standing orders.
Clause 7(2) provides for mandatory standing orders for the election of a presiding officer. The view was taken that the Assembly must have a presiding officer, and to that extent the United Kingdom Parliament is laying down part of the structure of the Assembly: but I hope it will not be tought that the United Kingdom Parliament or the Government were seeking to go too far in that. It seemed desirable that that feature of the United Kingdom Parliament should be taken to the Assembly.
Clause 23 provides for mandatory standing orders for securing certain provisions, which are listed in Schedule 6, in Assembly Bills to secure the Crown's consent. Again, I think that is a perfectly understandable provision and I need not take up too much time on it at this time of night. One might have left Clause 25 but, having regard to the history of these matters in the other place in recent years, it was decided that Clause 25 should provide for mandatory standing orders for the disclosure of Members' pecuniary interests in any matter before taking part in proceedings dealing with that matter. The sanction there is that subsection (2) of Clause 25 provides for a fine not exceeding £500 for any contravention of standing orders made under this clause.
Clause 27 provides for mandatory standing orders that ensure that the

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financial initiative for Bills rests with a Scottish Secretary. Clause 24, I might mention, provides that standing orders may include provision for preserving order, because it might have been doubtful whether the Assembly had that power unless it was specifically given. The standing orders may also include provision for the exclusion of Members from the proceedings.
These mandatory standing orders, as I have said, make explicit that which is regarded as essential, and standing orders are chosen as the means of achieving what is necessary rather than substantive provision in the Bill, because the substance and detail of what is required would have to be embodied in the standing orders. As to the permissive standing orders covered by Clauses 24, 26 and 28, provision is made for that just to make it clear beyond doubt that the matters there referred to can be covered by standing orders.
Clause 26 puts beyond doubt the Assembly's ability to appoint committees with functions relating to any devolved matter. I was asked to consider what would be the effect. I think that one has to look at each individual mandatory provision and to consider how likely it is that there would be some departure from the standing orders. If we take, for example, Clause 23, that provides for mandatory standing orders for securing that certain provisions receive the Crown's consent. It is rather difficult to see that these mandatory standing orders would not be complied with, when one considers the kind of watch over the Assembly's proceedings that is bound to be taking place. Clause 25, relating to pecuniary interests, provides a sanction in the form of a fine. Clause 27 is rather important. It is difficult to believe, if there were mandatory standing orders ensuring that the financial initiative for Bills rested with the Scottish Secretary, that these would be departed from.
At the end of the day, except in the case where there is a fine provided, the sanction is that the standing orders must be there, that the officers of the Assembly, the political opponents in the Assembly and others, both inside and outside, who have to watch its proceedings, will seek to ensure that the standing orders are enforced if they are there. If they were
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not, one could consider the suggestion contained in the Amendment that the facts should be challenged. But, for the reason I gave right at the beginning, it is thought that that would be too extreme; that would be too high a price to pay. Accordingly, I suggest that the provisions in the Bill should be accepted as they are.
9.23 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: May I ask the noble and learned Lord one question arising out of this? My noble friend would probably wish to accept what the noble and learned Lord has said about the Amendment in this interesting discussion, which was worth having. It may be that I am raising an unnecessary point, but I am not sure that I am. Subsection (5) of Clause 17 provides that every Scottish Assembly Act shall be judicially noticed, and of course this is absolutely right. In fact, by, I suppose, the law of Scotland and by, I believe, the law of England, when you get an Act of Parliament there is an ultimate test of what the Act says. Of course, one normally takes the King's printer's copy. There are occasions when there is a misprint in it, and if you are faced with a problem you can go to the Parliament Roll and look at the Act of Parliament and see what it says on the Parliament Roll, whatever that may be.
In other words, it is possible, if a dispute arises as to what an Act of Parliament says, just as you can look at the standard yard or the standard metre in the Physical Laboratory, to look at the Parliament Roll and see what the Act of Parliament says. I am not sure that in this Bill there is any provision of a similar method of certainty and authentication in relation to an Act of the Assembly. If there is a dispute as to whether a certain phrase in the King's printer's copy, or the Queen's printer's copy, or whatever it may be, is a misprint or is genuine, what is to be the ultimate test of what is an Act of the Assembly?
Lord McCLUSKEY: I think that the correct answer to that is, first, as the noble and learned Lord has said, that the Bill does not provide for it; and, secondly, the ultimate test would be the test which the court would determine. Of course, that may not be a satisfactory answer, because the noble and learned Lord may want his answer within the Bill. But I

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can only then say that one envisages, assuming that this is a responsible Assembly, which is an assumption that I am certainly happy to make, that the Assembly itself will devise some method whereby it presents to the Secretary of State—and we shall come to clauses dealing with that—a Bill which it has passed. It may be that that will be the Bill which will, as it were, be the master copy which the court would require to look at in the event of some dispute as to the true content of the Bill.
Lord HAILSHAM of SAINT MARYLEBONE: I do not think that this can quite be left to the court to decide. I was hoping that the noble and learned Lord would draw my attention to subsection (3) of Clause 17 and say that the copy of the Order in Council actually signed by the Queen in the Privy Council would be the master copy. But I feel that this ought to be put beyond peradventure.
Lord McCLUSKEY: I am happy to have the help of the noble and learned Lord. That is the answer which I should have given and I am happy to acknowledge that I should have given it. Therefore I now give that answer and, as the noble and learned Lord suggested it to me, I hope that he will be satisfied with it.
Lord DRUMALBYN: I should like to raise what is perhaps a rather disagreeable point: that one must look at the possibility that the Assembly and its procedures will not work in the way that the noble and learned Lord foresees. As we have seen, all kinds of things can go wrong in Assemblies all over the world. People go into secret session. Procedures are evaded. I have no doubt that the Scottish Assembly will be staffed by people who are experienced, and who will probably have obtained their experience in this Parliament, and that they will do their utmost to ensure that the procedures are carried out.
Procedures are very necessary indeed for the maintenance of freedom and for ensuring that Bills go through all their stages properly and that the voting and all the rest of it is properly conducted. This may not always happen. One cannot be sure that it will. I feel that
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there ought to be some way in which one may challenge a Bill of this kind if it has not gone through the proper procedures. The kind of case I am postulating would probably not be unaccompanied by a certain amount of violence. One cannot altogether exclude this possibility. Nevertheless, a Bill would purport to be a Bill and in some circumstances it might be presented to the Secretary of State as a Bill which had been duly passed by the Assembly. It seems to me that in its infant stages there ought to be some safeguard, although, quite frankly, I do not know what it should be.
Lord McCLUSKEY: May I urge upon the noble Lord this point. When one looks at Westminster, the courts do not seek to go behind what happened before a Bill went on to the Statute Book, having obtained Royal Assent. It is properly assumed that Parliament, as a body which is subject to certain safeguards of public scrutiny, of political pressures and so on, can responsibly look after its own procedure. I cannot imagine that the noble Lord is suggesting that the Scottish Assembly, by whatever method it is elected, will be any different in that respect. Under the provisions of this Bill, the Scottish Assembly will be a body which from time to time has to go back to the electorate. It will be unable to change that fact. It will be staffed in the manner suggested and there will always be some people in Opposition and, one hopes, some people in either an independent or Cross Bench position who will scrutinise what happens. These are the real safeguards. I accept that one could make it perfect by subjecting measures to the scrutiny of the courts, but to make perfect that which in this Parliament is made good in other ways would be a terrible price to pay. May I ask the noble Lord to accept that on a proper balance and making not an optimistic but a realistic assessment of what the Scottish Assembly will be like, this is a sufficient protection?
Lord HAILSHAM of SAINT MARYLEBONE: I was so successful last time that I am going to make another suggestion to the noble and learned Lord. If he looks again at subsection (3), perhaps he will agree that it is a more complete answer to what was put to him than the answer which he gave. Surely the con-

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stitutional position is that the measure will go through the Scottish Assembly in one way or another. Of course there may be irregularities—one does not know—and subsection (4), which is what we are discussing, says that the courts are not to look at any irregularities there may have been in the stages before it becomes an Act, but at the end of the day it must be passed by Her Majesty in Council.
What this means—and in this respect I speak as a former Lord President—is that it has to be processed through the central Government machine at Westminster. It does not alter it, any more than the central Government at Westminster under the Lord President's office alters the various orders which are made for the closure of burial grounds which we do by the dozen every week, so far as I remember. But in fact it is the business of the Lord President's office and, although it is not a very onerous ministerial duty, it is a very important function in the constitutional machinery of the United Kingdom that those things are gone through with a great deal of care; and the reason the Lord President is there is to put ministerial responsibility on to what is done. Once it is said that the thing should be done by Her Majesty in Council what you are saying is that there is a Lord President in one House of Parliament or the other and that if there is a technical flaw in what has been done it can be challenged in Parliament on the basis of the ministerial responsibility of the Lord President of Council. I feel sure that this would be upheld in either House wherever the Lord President happened to be.
Lord DRUMALBYN: I am much obliged to my noble and learned friend. I entirely accept that the intentions are wholly good, and I am only talking about an outside chance of what might develop, probably not immediately, but at some time or another. I entirely accept what both noble and learned Lords have said. I merely thought that I ought to raise this point to see whether there was any particular thing which could be put into the Bill. After all, in the sort of circumstances that I am postulating, in practice it would be virtually impossible for the Lord President to investigate what had happended. Here would be a Bill that would come up to him and, in those circumstances, he could only either take it at its
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face value or reject it out of hand. But this is a long shot, and I am prepared to leave it at that.
9.33 p.m.
Viscount COLVILLE of CULROSS: It may be a long shot, but I think this discussion has opened up a number of things about which the Government may wish to think a little further, and I certainly shall think about them. On the question of what is the definitive Act of Assembly, I do not think that for all purposes the Act as approved by Her Majesty in Council will do, because at an earlier stage we must have the possibility of the Bill being dealt with under the over-ride powers of, for instance, Clause 35. In order to be able to do that there must be a definitive Bill with which to deal. Therefore it seems to me that one of the things that will have to happen is that the standing orders of the Assembly will have to provide for there to be the equivalent of what we have in this Parliament; that is to say, the one and only true copy of the Bill signed by the Clerk of the Assembly, or something of that sort, which shows exactly what it is in the only unchallengeable form which has got to that stage, and can then further be processed, as necessary, under the Bill. That is one thing that I think probably will have to be dealt with by standing orders.
Then we are faced with the problem of what happens if there turns out to have been an irregularity. Let us assume that it is a notorious irregularity so that there will be no difficulty about a Minister at Westminster knowing about it; it will be common knowledge. The mere fact that there has been an irregularity in procedure is not something which, under Clause 35 as it stands, can be the subject of over-ride powers, because if the Government insist upon the word "and" between paragraphs (a) and (b) there would not necessarily be a situation where the over-ride powers would come into effect, even if to pass the Bill subject to the irregularity was patently not in the public interest. Therefore, that will not do, as the Bill now stands.
It seems to me, therefore, that the only possibility is that which my noble and learned friend has suggested, because,

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let me say at once, I do accept the explanation of the noble and learned Lord, Lord McCluskey, that it would probably be wholly unreasonable and unsatisfactory to deal with this by way of private litigation in the courts. Therefore, we have got to look to see whether the irregularity can be picked up and dealt with under the procedure of presenting these Bills by way of Order in Council. I, frankly, do not know enough about this.
I suspect that the noble and learned Lord would like to think about it, to make sure that there really is power to reject a Bill notwithstanding that it is not subject to override powers, is wholly concerned with matters within thelegislative competence, and is in every other respect wholly impeccable, but which is a Bill which everybody knows is subject to a procedural irregularity which cannot be allowed to persist. If the only protection is the one which resides in the Lord President of the Council in his or her advice to the Monarch, then I am not sure we know enough about it at this stage to leave it forever, but I am certainly happy to leave it for tonight, if the noble and learned Lord would like to consider that matter and see whether it is a complete answer.
Lord McCLUSKEY: May I say, in one sentence, that my advice was to the effect to which the noble and learned Lord spoke in relation to Clause 17(3). I did not mention that argument because I wanted to advance the other argument. In the light of what has been said, I will look at that advice again.
Viscount COLVILLE of CULROSS: I think that is a very satisfactory situation. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 17 agreed to.
Clause 18 [Legislative competence of Assembly]:
9.37 p.m.
Viscount DILHORNE Viscount DILHORNE moved Amendment No. 74:
Page 8, line 1, leave out from ("law") to end of line 3 and insert ("in Scotland when it has been approved by Her Majesty in Council.").
The noble and learned Viscount said: My noble friend Lord Home and I have put down this Amendment to raise a question which we consider to be one of very considerable importance. It does not concern what happens during the course of the passage of a Bill through the Assembly, but it is a question relating to the status of the Assembly itself and the effect of an Assembly Act. I think one can put the question quite simply in this way. Is an Act of the Scottish Assembly to have in Scotland the force and effect of an Act of Parliament, or is it to be just a piece of very subordinate legislation, the validity of which can be challenged in the courts at any time? That is, as I say, what the Bill proposes and what my noble friend Lord Home and I think is wrong—wrong because we feel it will give rise to all sorts of difficulties and friction, difficulties so great that the proposals in this Bill, if enacted, are not likely to endure for very long, for the difficulties will lend support to the view that nothing less than complete independence for Scotland will do.
May I remind the Committee that, under the Bill as it stands, only when a Bill has been passed by the Assembly—that is, by the elected representatives of Scotland—can it be referred to the Judicial Committee if it is felt that the Assembly is not competent to pass it. The question of competence is different from the question we have just been considering. If the Judicial Committee comes to the conclusion that it is not within the competence of the Assembly, Clause 19, which we are not now discussing, does not permit the Secretary of State to submit it for the Royal Assent.
I should like to refer for one moment to the speech of the noble and learned Lord, Lord Hailsham of SaintMarylebone. I was interested to hear him say that the duty of submitting Assembly Bills for the Royal Assent would rest with the Lord President of the Council. The implication of Clause 19 is, I think, quite clear; namely, that it will be the duty of the Secretary of State to submit an Assembly Bill for the Royal Assent and not the duty of the Lord President at all, because Clause 19 provides that, in certain circumstances, the Secretary of State shall not submit the Bill.
However, I want to make the point first of all that the passage of the Bill through

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the Assembly may take a very long time, involve a great deal of work and, as the Bill now stands, only after it has been passed can it be found out, on a reference to the Judicial Committee, whether or not the time of the Assembly has been wasted. That is a defect which later Amendments seek to rectify.
If the matter is referred to the Judicial Committee and after hearing arguments the Judicial Committee holds that the Bill is within the competence of the Assembly, one might perhaps think that the Bill would provide that that would be the end of the matter. The Bill can then receive the Royal Assent and one might think that that would certainly establish the unchallengable law of Scotland. However, if one thought that one would be wholly wrong, as the Bill now stands. It would be the law of Scotland only so long as it is not successfully challenged in the courts and that challenge may take place at any time. It may be years after the Act has passed, years after it has been in operation and years after it has been treated throughout Scotland as the law of that country.
That is welcomed by my noble and learned friend Lord Fraser of Tullybelton and I recognise that he is not alone. I must confess to a little surprise at finding myself advocating a higher status for the Assembly than that which a Scotsman wants it to have. However, I am glad to have the support of my noble friend Lord Home of the Hirsel, of the Law Society of Scotland and also of my noble and learned friend Lord Morris of Borth-y-Gest who regrets that he is unable to be here tonight to speak in support of this Amendment.
It has been said earlier in these debates that an Act of the Assembly shall be subordinate legislation. Of course, that is true and that is why it is said that it should be challengeable in the courts. However, that does not follow. I refer noble Lords to the Simonds edition—not the Hailsham edition, because I do not think we have got to that—of Halsbury's Laws of England. One finds, in volume 36 that it is stated that in modern Statutes:
"it is not uncommon for provision to be included which purports in terms to limit the jurisdiction of the courts as, for example, by specifying a period within which orders made under them may be challenged on the grounds that they are not within the enabling power or that any requirement of the Statute has not been observed and pro
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hibiting the questioning of such orders thereafter in any legal proceedings whatsoever".
In other words, it is not uncommon in a modern Statute to find the jurisdiction of the courts to declare a piece of subordinate legislation to be limited and, I believe, in some cases it is ousted entirely. Sometimes a Statutory Instrument cannot be challenged in the courts after six weeks and, as we know, a challenge in Parliament to a Statutory Instrument has to be made usually within a very limited period.
That is the position which may exist with regard to an order being made by a Minister. But under this Bill, as it now stands, the validity of an Assembly Act can be challenged in the courts at any time. It is all very well for my noble and learned friend Lord Fraser of Tullybelton to say, as he did during the course of the Second Reading debate, that an Assembly Act will be subordinate legislation of a specially dignified kind. It will be subordinate legislation, however dignified, of a very inferior kind, although given the name of an Act.
It is said that this is necessary and desirable so that any Scotsman living in Scotland will be entitled to say—and be entitled to say it at any time—that an Act of the Assembly or the Parliament of Scotland is not binding upon him.
Years, it may be, after the Judicial Committee has said that a Bill is intra vires the Assembly, years after it has received the Royal Assent, a citizen of Scotland must, it is said, be able to challenge the validity of the Act and he may be able to fight his case up to your Lordships' House. If he succeeds, what will happen then? People may have been prosecuted and sent to prison for breaches of what is regarded as the law of Scotland until a decision of this House, in its judicial capacity, is made. They may have had to pay large sums in damages—one does not know.
But what is to be done about them if, years after the Act is passed, it is held that it never was the law? The Bill is entirely silent about that. Of course there must be safeguards against the Assembly legislating in fields in which it is not competent. Those safeguards are provided in Clause 19. My noble friend Lord Home of the Hirsel and I seek to strengthen them. But if those safe-guards work as they should, they should

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prevent a Bill which contains provisions beyond the competence of the Assembly from receiving the Royal Assent.
However, having regard to one of the Schedules, I recognise that something may slip through that filter. Sometimes it may be difficult to decide whether a minor provision is just within or just without the competence of the Assembly. If something of that sort happens to slip through, would it really matter whether it is treated as part of the law of Scotland? Would it not be far better to let it be so treated, than to have every Act of the Assembly always challengeable in the courts, with all the uncertainty, friction
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and litigation which would result, which would be likely to benefit only a limited class of individuals North of the Border?
If we are to have a Scottish Assembly with power to legislate for Scotland, I suggest that we should see to it that there should be no uncertainty about the effect of what it does. Let us give it power to make laws for Scotland which are certain. Let an Assembly Act, passed by the elected representatives of Scotland, be an Act for Scotland—as unchallengeable once it has the Royal Assent as an Act of Parliament. Do not treat that Act of the Assembly, as the Bill now does, as if it was just a by-law passed by a borough council. I beg to move.
9.50 p.m.
Lord HOME of the HIRSEL: I shall not detain the Committee for more than a minute because my noble and learned friend has put the case for this Amendment as well as it could be put, and far better than I could express it. One of the anxieties about this Bill is that it includes too many areas of uncertainty, and too many possibilities of friction between the Edinburgh Assembly and the Westminster Parliament. In Clause 19, my noble and learned friend and I have tabled a number of Amendments designed to reduce that friction so far as is possible. I hope that when we come to that clause, the Government will be able to accept some of those Amendments. I rather wish that we could have discussed Clauses 18 and 19 together because they are relevant to each other.
I shall not repeat anything that my noble and learned friend has said because I am not versed in the law, except to say that I think that, if an Act of the Assembly has been declared by the Judicial Committee of the Privy Council to be intra vires, that if it has passed the Assembly in Scotland, that if it has also received the Royal Assent, then it seems to me that that should be the law of Scotland and it should not be able to be challenged by any individual in the courts. That is really the quite simple case, though I am not sure that "simple" is the right word, because nothing that has any legal connotations is at all simple, as we learned this evening in this debate.
Nevertheless, when it has gone through all those processes it would diminish the status and dignity of the Assembly if it were to be challenged in the courts by any individual for any time, as far as I could see, in the future, and right ahead as far as anyone can see. I should like to support what my noble and learned friend has said. I believe that this would diminish the dignity of the Assembly, and I hope that the Government will respond to my noble and learned friend's appeal.
9.53 p.m.
Lord DIPLOCK: As regards most of the Amendments which are to be moved to this Bill by my noble and learned friend Lord Dilhorne I am an enthusiastic supporter in so far as they relate to a review
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of the legality of legislative or administrative action by the Scottish Assembly, or the Scottish Executive. But as regards this particular Amendment—and I am only speaking to this—I am an equally enthusiastic opponent. Its effect is to give the Secretary of State the right to determine that an Act of the Assembly is within the latter's power, and to do so to the exclusion of any judicial authority at all. That, in a Constitution, is in my view a negation of the rule of law.
My noble and learned friend referred to the difficulty—the impracticability—of allowing Acts of the Scottish Assembly to be challenged after they had been passed. That is a position which exists in every federal Constitution—in Australia, in Canada, in the United States of America—and they have survived very well without chaos and disaster. Nearer home, it has been the position that existed with regard to Acts of the Parliament of Northern Ireland until direct rule came in a few years ago. There is nothing remarkable, there is nothing disastrous, about that.
It is said that it can safely be left to the Secretary of State to decide whether he wants to refer an Act to the Judicial Committee of the Privy Council or not, or whether he will let it through on his own say-so. The provisions for the distribution of powers between Parliament at Westminster and the Scottish Assembly provided for in this Bill are the most complicated I have seen in any Constitution which I have ever read, and in the course of my career at the Bar and on the Bench I have read a good many of them.
Even with the best will in the world it would be very easy for a Secretary of State to misunderstand or misinterpret some of the provisions of those Schedules which decide whether or not a particular matter is within the legislative competence of the Assembly. I say "with the best will in the world". But let us be realistic and face facts. There may be political pressures which make a Secretary of State, and perhaps his advisers, anxious to find that a particular Bill is within the legislative competence of the Assembly, for good—no doubt, as he thinks—political or national reasons. As I said, this proposed Amendment is contrary to the whole spirit of the rule of law in constitutional matters. I venture to say that

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if we were to accept this Amendment we should be setting a very poor example for our constitutional future in this country.
9.57 p.m.
The Earl of CROMARTIE: I know that I am treading where angels fear to tread after all the noble and learned Lords have been speaking, but I should like to support what the noble and learned Viscount, Lord Dilhorne, has said. It is all very well to say that we should tie up the Assembly like this and that the Secretary of State will not know what to do. Surely the Secretary of State will have some quite good advisers. He will not do it just out of his own head, if there is an Assembly—not if the Assembly is properly formed. I think it is asking for trouble to emasculate the Assembly in the way that has been suggested by some noble Lords—and noble and learned Lords at that—and not to let it have a fair run for its money. I can assure you that the people in the Assembly will be quite intelligent. They will be quite capable of running their own Assembly. If you bind them hand and foot with these various legal facets, whatever they are called, we shall then go straight to separatism. The Assembly will avoid that if it is given proper powers. Otherwise we shall be in for a great deal of trouble.
Lord ROBBINS: I find it extremely difficult to accept what the noble Earl just said. As we were reminded by the noble and learned Lord, Lord Diplock, provisions of the sort at which he hinted prevail in every successful federation in the world. To rely simply on the continuity of good sense and sufficient knowledge of the advisers of the political Secretary of State seems to me to be an extremely inadequate substitute for the well-tried institution of the rule of law and judicial review.
Lord HAILSHAM of SAINT MARYLEBONE: I was hoping, and do hope, that the noble and learned Lord, Lord Fraser of Tullyhelten, who I see on the Cross-Benches and who gave us such an interesting discourse on Second Reading, and perhaps others of his noble and learned friends, were going to intervene in this debate, because he gave us a speech which I think was conclusive of the matter
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when we were on Second Reading. I intervene now because he is obviously collecting his thoughts and I feel sure that I shall he able to tempt him into intervention before the noble Lord the Chairman finds it necessary to put the Question. I also hope the Lord Chancellor will find it possible to reply to this debate.
I am a little sorry that the noble and learned Viscount, Lord Dilhorne, employed such populist and rhetorical language about the question of post facto review of the vires of what the Assembly does, and I am not surprised that, with his rhetorical demogogy, he managed to excite his noble and learned friend behind him. I think, however, on reflection, the wisdom of the Committee will be the other way. Personally I found the words of my noble and learned friend Lord Diplock—they are all my noble and learned friends on the Cross-Benches—much more persuasive, although delivered in a far calmer frame of mind, than those of my noble and learned friend Lord Dilhorne.
Lord Diplock said, I thought with perfect justice, that what was being proposed by Lord Dilhorne was nothing short of a subversion of the rule of law, and I think that is certainly true, for the reasons Lord Diplock gave. But it is also a subversion of the rights of the subject—of the Scottish subject and indeed of the English subject who happens to venture across the Border; and of the Welsh subject who happens so to venture; and it is also subversive of the sovereignty of Parliament because Parliament (this is the whole structure of the Bill) lays down that the Assembly of Scotland should have certain defined but limited powers. It is not a sovereign body; it is a body with a definite limit to its powers, and indeed part of the case of the Government for the Bill has been that very fact; namely, that the sovereignty of Parliament remains unimpaired.
I should have gone a great deal further than the Government have gone. Always I have made no secret of the fact that, unlike many members of my Party, I think in the end this country has got to face federalism in some form. That would mean that within its own sphere, but only within its own sphere, the Assembly was able to pass laws, and that Parliament within its own

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sphere, but only within its own sphere, was able to pass laws too. In that case it would be like the Parliament in Ottawa and the Assembly of Alberta or the other Canadian provinces; and, mutatis mutandis, the Parliament in Canberra and the Assemblies of the various State Legislatures of the Commonwealth of Australia; or, again mutatis mutandis, the Congress in Washington and the various Legislatures of, say, the State of Tennessee. That, I think, would be a far better solution than that favoured by many of my noble friends and my honourable friends in another place, and better than that provided by the Government in the present Bill. I have never made any secret of that view.
But it is absolutely essential that if you are preserving the sovereignty of Parliament—and that is the purpose of the Bill—you must equally provide for some kind of proper procedure for preventing injustice from following the excess of power by the Assembly for Scotland. That seems to me to be essential for the Bill. If my view were to prevail at some later date in the history of this Kingdom, and a true federal system were introduced, it would still be more necessary because the frontier would have to be policed both ways. But in both cases there would have to be a post-enactment review and a pre-enactment review.
This is what is done in point of fact in Canada, which is a very good example of what we are producing here, with the qualification that Canada is a true federation and this is not. Canada has a pre-enactment process. Noble Lords will remember, without doubt, that in the 1930s the Aberhart legislation in Alberta was referred, I think, to the Judicial Committee or to the Supreme Court; I am not sure which it was, but it was one or the other. That legislation was referred by the Ottawa Government and was rejected, pre-enactment, I think—but certainly it was rejected.
That was a perfectly valid constitutional process. But that does not prevent the courts of Canada from saying, every day of the week, that certain of the Acts of the Assembly of Alberta may, or may not, be intra vires, within the powers of a Province under the British North America Act. Since Canada is a true federation—which this is not—the courts are equally
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able to say that certain Acts of Parliament are ultra vires the British North America Act when they are made in Ottawa. There is nothing derogatory about that. It is done in America, and they have managed to survive for 200 years. It is done in Canada, it is done in Australia, it is done in Switzerland. It is done in every country in the world, I think, except Israel, New Zealand, and the United Kingdom of Great Britain and Northern Ireland.
When the noble and learned Viscount, Lord Dilhorne, tries to make us believe that this is derogatory to Scotland because the Assembly is, as my noble friend said, tied up in this way, and when he says that it is reducing its enactments to the level of by-laws, he is frankly talking nonsense, and the most arrant nonsense that he could be talking. But if this Committee wants to preserve the sovereignty of Parliament it has no option but to reject the Amendment of the noble and learned Viscount, Lord Dilhorne.
But I also say that it is contrary to the liberty of the subject. The noble and learned Viscount, Lord Dilhorne, made me gasp when I heard him. He said, "Well, of course, if some people are sent to prison, let's go on doing it; it doesn't matter. If some people have been mulcted in damages by an excess of power, it doesn't matter. Let's go on doing it, let's be consistent. If the Assembly, which is composed of very wise people, and the Secretary of State, who is even wiser, put their rubber stamp on the thing, that will be all right. It is far better to preserve the powers and authority of the Assembly than to give justice to the subject who has been sent to prison, or to another subject who has been threatened with prison ". These are startling propositions to come from a former Lord Chancellor, especially when that former Lord Chancellor was once a member of the Conservative Party. I find this very difficult to swallow.
I would go on to say that if it be the case that there are very many precedents—I notice that he did not quote what they are—of subordinate legislation by Ministers being precluded from consideration by the courts in respect of their validity because of their absence of vires by a strict six-weekly provision of time, so that you cannot challenge a Minister's vires in the courts unless you do it within six weeks,

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then, short of the Iron Curtain, there is nothing like that which has ever been heard of as a serious proposition, and if it is really going on it is high time it was stopped.
There is another point I should like to urge on the Committee. The truth is that there is a place for pre-enactment review and there is a place for post-enactment review. They are quite different conceptions, and they deal with quite different situations. If you look at Clause 19, you will probably see that, although there is a subsection which allows an individual provision to be submitted for pre-enactment review, what the section is mainly concerned with is the validity of a Bill—that is to say, a proposed enactment—and, of course, the Privy Council or the House of Lords, or whatever judicial authority is ultimately set up, is eminently well suited, if it can, to pronounce, on broad questions of principle, whether certain things are or are not within the powers of the Assembly.
But suppose something slips through the net, as it is bound to do. This is not a wild hypothesis. The noble and learned Lord, Lord Diplock, has said that this is one of the most complicated pieces of constitutional legislation he has ever seen; I think he said it was the most complicated. I am at a later stage, and in relation to another Amendment, going to invite some of your Lordships to take a ramble through some of the Schedules. Your Lordships will be quite surprised what you find when you get there. But the idea that the Privy Council, in its omniscient wisdom, is going to be able to take every net out of this forest of hares is one which baffles my imagination.
The truth is that nobody— not anybody; not the wisest Parliamentary draftsman; nobody—can say, even with a sovereign Parliament, whether in some way a serious injustice will not be done by inadvertence by the best instructed Assembly in the world; let us say, by ourselves. I myself have always wanted to see some form of judicial review in Parliament. This is not provided. But when you have an Assembly which is given such a complicated set of powers as your Lordships will see in the Schedules, if you trouble to look at them, and when you reflect upon the unpredictability of human
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circumstances as is displayed by litigation, the idea that anybody, even the Privy Council in its Judicial Committee, can conceivably foresee all the possibilities of trouble through excess of powers which could exist, even by inadvertence, I think you begin to see that Lord Fraser's original view on Second Reading was the wise one, and that my noble and learned friend Lord Dilhorne has really been guilty of an excess of zeal in the rhetorical language in which he has proposed this Amendment.
I would only say that, so far from being derogatory to a civilised society, that the Judiciary should have the right ex post facto to examine the vires of a legislative enactment is not only not derogatory to the Assembly but is, I would venture to submit to the Committee, really the only way in which this piece of legislation can be made to work without injustice.
Lord MACKIE of BENSHIE: I venture to intervene, encouraged by a number of factors. One, of course, is the courage of the noble Earl, Lord Cromartie, who rushed in; and the other is that really I feel I have almost understood everything that has been said—even some of the Latin tags, though they appeared to me to be somewhat mispronounced. I have been encouraged also in that I feel that while the noble and learned Viscount, Lord Dilhorne, may have proposed the Amendment in emotional terms, the opposition was expressed in colourful terms and not altogether in the dry legal terms that we are accustomed to think of in the case of the law. And very enjoyable it was!
I must say, too, that I have endeavoured to study this matter and, after much thought, I disagree with the noble Earl, Lord Cromartie, because although I think the powers of the Assembly should be far wider in agriculture and industry, for example, I understand that they must be legally given, must be observed within the law of the United Kingdom, would have to be in a proper federal system, and that we must acknowledge the legality of their actions within the concept of Great Britain.
It appears to me, however narrow are the powers, that we must accept this fact. Having done that, when we come to look at the Judicial Committee examining

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the legality of any Bill, I find it difficult to think that sensible secretaries of the Executive in Scotland would not consult unofficially with the members of the Judicial Committee over lunch—or whatever lawyers do; although from the expression of noble and learned Lords, I see that they do not do that—or study the legal implications. I think that by whatever means they would examine the legal aspects with great care before submitting the Bill to the Assembly and also during its passage, and would put the points if Amendments were suggested. But until the Bill is complete I do not see how the Committee can examine it. Therefore, although it appears complicated, as a layman I see that this must be so.
With regard to the right of a Scottish citizen—I do not know if this applies to any citizen; but I am all for a Scottish citizen being able to challenge it if there is a flaw—it appears to me that this is a very valuable right, and is unlikely to lead to the sort of devastating paradise for lawyers, with a whole succession of people claiming damages for years spent in prison because of a flaw in the Bill. Therefore, I must say that we on these Benches support the Government in this matter. I think it will be good for Scotland. We must accept the fact that it must be legal in the framework of the United Kingdom and that these provisions protect the citizens of Scotland and must be in the Bill.
10.18 p.m.
Lord FRASER of TULLYBELTON: I feel that a certain inaccuracy of language crept into some of the remarks made by my noble and learned friend Lord Dilhorne in proposing this Amendment when he referred to the position of a Bill which had been referred to the Judicial Committee of the Privy Council. He said at one stage—and I think the noble Lord, Lord Home, also said it—that once a Bill has been pronounced by the Privy Council to be valid, that should be final. But your Lordships will appreciate that the Amendment has nothing to do with that subject. By this Amendment, the test of whether a Bill or an Act of the Assembly is to he valid is not whether it has been approved by the Privy Council but
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whether it has been approved by her Majesty in Council—which I take it to mean has received the Royal Assent and not only pronounced to be valid by the Privy Council. I think there may be some misunderstanding on that.
On the matters of principle, I have said all that I had to say on this on Second Reading and I have little to add. The important point is that the citizen who may be affected by an Act of the Assembly which is, in fact, ultra vires ought not to be shut out from his resort to the courts by the mere fact of the Act having been passed and having received the Royal Assent. If it is ultra vires—that is to say, if it is contrary to the provisions laid down in this Bill when it becomes an Act—then the citizen has a right to resort to the courts to have his rights protected, to recover damages or to get whatever other remedy is appropriate. It seems to me to be a matter of absolutely fundamental importance that he should not be deprived of that right in the mere interests of certainty. Of course certainty is very desirable, but it must yield plainly to the true law when the two are in conflict. That seems to me to be the fundamental point.
There is nothing surprising about that when we remember, as some of my noble and learned friends have said, that in every federal Constitution in the world this provision exists and has to exist where there are possibly rival legislators, a federal or chief legislator of some sort, with provincial or state legislators to some extent subordinate to them. One cannot have various Legislatures dealing with the same territory or with power to deal with the same territory without some method of resolving conflicts between them. The obvious method of resolving a legal conflict of this sort is to allow the persons concerned to resort to the law courts to have their rights declared and maintained. The effect of this Bill would be that the right of anybody living in Scotland—not only the Scottish citizen as was suggested at one point, but any person with any interest—to resort to the courts in Scotland, if the matter arose in Scotland, or in England if it arose here, would be declared and protected. There is nothing derogatory in that; it is the ordinary way of protecting a person's

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rights in this country. I hope that this Amendment will not receive much support.
10.22 p.m.
Lord O'NEILL of the MAINE: May I briefly repeat what I said on Second Reading, curiously enough, after the noble and learned Lord, Lord Fraser of Tullybelton. Maybe the noble Lord, Lord Wilson of Langside, will not be in favour of my mentioning what happened in Northern Ireland, but I believe that we can draw something from it. My memory is that, before any legislation was submitted to the Northern Ireland Cabinet, it had to receive a certificate from the Northern Ireland Attorney-General saying that the piece of legislation in question was not ultra vires. I hope that whoever is going to be the Law Officer of the Crown—I expect that is the wrong phrase—in Edinburgh will not allow a piece of legislation to be introduced into the Assembly in Edinburgh without his approval.
Although the noble and learned Lord, Lord Diplock, shook his head very vigorously when it was suggested that there would be a little behind-the-scenes discussion, I know for a fact that the Attorney-General's Department in Northern Ireland consulted with London before they told the Department in Northern Ireland that the legislation which they proposed was ultra vires. Therefore, although, as the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, some fish are bound to get through the net, I hope that very few will. I hope that the legal officer in Edinburgh will tell the Department concerned whether the proposed legislation is intra vires. If he is not sure, I hope to God that he will consult with his opposite number in London.
The Earl of SELKIRK: I must admit that I think the dilemma here is inherent in the Bill and that we shall not get away from it. I shall always be grateful to the noble and learned Lord, Lord Diplock, for saying that these are the most complicated provisions of any Constitution he had ever seen. But it is not a Constitution; it is constitutional law but not one word of this is entrenched. That means in effect that, when anything comes up, Parliament can change the law before it is brought
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before the courts. This is an inherent problem. One cannot get away from this.
I heard one noble Lord say that ignorance of the law is no longer an excuse because none of us know the law except, with great respect, possibly one or two of the noble and learned Lords in this Chamber. Nobody knows the law and, when you say you do not even know the law, you do not even know whether what you did was right or not. This is an intolerable situation. How can one challenge it? It will take time: it may take five years and one needs the money to do it. I believe that the structure of this Bill is such that we shall never be able to get round this particular problem. If something can be put in which will make the likelihood of a mistake absolutely minimal—and frankly, I do not think that that is altogether possible—I believe that that will be the biggest contribution the Government can make.
10.26 p.m.
The LORD CHANCELLOR: When the devolution Bill was under consideration, careful thought was naturally given to the desirability of achieving as much certainty as possible in the provisions of the Bill. That has been, as I understand it, the main motivation behind the Amendment which the noble and learned Viscount, Lord Dilhorne, has brought forward. But the conclusion we came to was that the establishment of certainty at the cost of a denial of the ordinary rule of law was too high a price to pay. It was for that reason that we came down in favour of the provisions for judicial review.
One of the few moments of delight I have had so far in the progress of this Bill through your Lordships' Chamber came when I listened on 14th March to the notable maiden speech of the noble and learned Lord, Lord Scarman, which made such a tremendous impact on your Lordships. What he said, at column 1228, was:
"Clause 18 of this Bill provides perfectly plainly, and I think rightly, that Scottish Assembly measures shall be law only to the extent that they are within the legislative competence of the Assembly. It is this provision of principle which gives the citizen the right, after enactment, to challenge in the ordinary courts of the land—Scotland, Northern Ireland, England and Wales—the constitutionality of the measure."

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He went on:
"It is admirable; I am glad it is there; but it is only part and parcel of the scene, the central actor of which is the ordinary citizen who can, in litigation which affects him directly, challenge the constitutionality of the legislation."
And he added:
"This, to my mind, is an immensely important principle and, let me say at once, one which endears the Bill to me."
A rare compliment indeed, but a very justifiable one, in my submission.
I do not want again to traverse the legal propositions. With respect, I accept the statement of the law that was given by the noble and learned Lord, Lord Diplock. Provision must be made that there might be room for error. It may well be that my noble and learned friend Lord McCluskey, with eagle eye, will be watching every stage of the process of the enactments that emanate from the Assembly, but even his watchful eye may occasionally fail and the citizen may discover after Royal Assent that he is the victim of an abuse and an excess of power because the power that is being exercised against him or the action which has damaged him had no legal basis or justification and was ultra vires.
The view the Government came to was that the right of the citizen to challenge in court such excessive abuse of power should not be abated even in the interest of constitutional certainty. That conclusion, I think, was the right one and I cannot support the Amendment.
Viscount DILHORNE: This has, indeed, been a remarkable debate, and, to me, a surprising one. I never thought in my wildest dreams, particularly after the debate which I listened to yesterday, that I should be accused of demagogy by the noble and learned Lord, Lord Hailsham. He seems to me to be asserting that he has a monopoly of rhetoric. I am attacked, because according to him, I used some demagogy. He appealed to me to speak in a calmer frame of mind. I can assure him that I remained calm throughout, but it was not so very long in the course of his speech before I felt tempted to get up and repeat to him the advice that he had given to me, in perhaps a somewhat stronger fashion. There is no need for
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his rhetoric or for his demagogy. I make no apology for raising this question this evening in this debate. I think it would have been very wrong if this Committee had not given consideration to it.
In answer to my noble and learned friend Lord Diplock, I wish that I had here with me my noble and learned friend Lord Morris of Borth-y-Gest, who I know feels very strongly in support of the Amendment that I have moved. Of course, my noble and learned friend Lord Diplock is right when he says that, with the Bill as it now is, if this Amendment were given effect to, it would leave it to the Secretary of State alone to decide whether the Assembly was competent to pass an Act. My noble and learned friend Lord Diplock is quite right as the Bill now stands. The difficulty is that we are discussing only Clause 18 and not Clause 19, and we have Amendments down to try to strengthen the safeguards against something getting through the Assembly which is beyond the latter's competence.
I do not doubt that, before a Bill is introduced to the Assembly, there will be discussions with, perhaps, the noble and learned Lord, Lord McCluskey, the Lord Advocate and other eminent Scottish lawyers. The reason why my noble and learned friend Lord Diplock and I were both shaking our heads in unity was that we do not think that those discussions will take place with any members of the Judiciary. That was all. Let us have the best possible safeguards against anything slipping through the net. That is what we want to achieve and that, I hope, we shall secure when we come to Clause 19.
It is very easy to talk about negation of the rule of law. There have been—the noble and learned Lord, Lord Hailsham, seems to have forgotten about them —several cases about Statutory Instruments which cannot be challenged more than six weeks after they have been made. Does anyone say that that is a negation of the rule of law? I should have thought that that could not be denied. But here one possibility is to say that, after a certain time, an Assembly Act should not be challengeable in the courts. I think that that may be worthy of consideration.

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A great deal of play has been made with the federal system. This, I thought, was to be an alternative to the federal system. I fear very much that this would be only a step towards the federal system, and that would be the only stopping place, short of the break-up of the Union, and I should not like that to happen. But it is said "Look at what has happened in Canada. Look at what has happened in Australia."One has only to make a few inquiries to find out what a source of friction this conflict between State law and federal law has been in federal territories. I was hoping that we could reduce friction. I think that we can and will, if we make the safeguards against the enactment of a measure which contains provisions beyond the competence of the Assembly as good as they can be made.
The noble and learned Lord, Lord Fraser, said that I had made an error in saying that an Assembly Bill would be valid if it had been approved by the Judicial Committee. I was cutting it rather short. If the Bill is referred to the Judicial Committee—and, as the Bill which we are considering now stands, that can happen only at the instance of the Secretary of State—and that Committee, having gone into it very carefully, decides that it is within the competence of the Assembly, it does not seem to me that it is really a negation of the rule of law to treat that Bill, which has been passed by the Judicial Committee, as law which is not challengeable in the courts in the future.
We have had an interesting discussion upon this Amendment. It has been difficult to deal with it in isolation without the other matters. I suppose that I should feel wounded by the observations of the noble and learned Lord, Lord Hailsham of Saint Marylebone. I am not going to reply to them in kind except to say that his advocacy has made me less inclined than otherwise I should have been not to press this Amendment to a Division. However, the example which the noble and learned Lord the Lord Chancellor set as to how to deal with this Amendment has been such that I now ask for the leave of the Committee to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 75 not moved.]
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

MILE END GARDENS (PORTSMOUTH) BILL [H.L.]
Reported with Amendments.