Lords Sitting of 19 April 1978

Preamble
The House met at a quarter-past two of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Derby)
The LORD CHANCELLOR on the Woolsack.

>LORD COCKFIELD
Sir Francis Arthur Cockfield, Knight, having been created Baron Cockfield, of Dover in the County of Kent, for life—Was, in his robes, introduced between the Lord Butler of SaffronWalden and the Lord Geoffrey-Lloyd.
>LORD RAWLINSON OF EWELL
The Right Honourable Sir Peter Anthony Grayson Rawlinson, Knight, Q.C., having been created Baron Rawlinson of Ewell, of Ewell in the County of Surrey, for life—Was, in his robes, introduced between the Lord Carrington and the Lord Hailsham of Saint Marylebone.

IDENTIFICATION IN CRIMINAL CASES
2.37 p.m.
Baroness MACLEOD of BORVE: 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 Devlin Report on Evidence of Identification in Criminal Cases (H.C. 338, 1975–76).
Lord WELLS-PESTELL: My Lords, my right honourable friend the Home Secretary hopes shortly to issue a further circular to the police about the conduct of identification parades and the showing of photographs. The new circular will be based on the relevant recommendations of the committee chaired by the noble and learned Lord, Lord Devlin.
Baroness MACLEOD of BORVE: My Lords, while I thank the noble Lord for his Answer, may I ask whether there have been any consultations and, if so, with whom?
Lord WELLS-PESTELL: My Lords, the first part of the Devlin recommendations were carried out in a circular issued by the Attorney-General after consultation with the Director of Public Prosecutions within two months of the issue of the Devlin Report in April 1976. That dealt with the whole question of how far it was safe to convict a person on eyewitnesses' evidence. The second part, to which the noble Baroness referred, dealt with the rules governing identification parades and the showing of photographs of suspects to witnesses.
The further circular that I mentioned will deal with the second part. The consultations have been not only between the Attorney-General and the Director of Public Prosecutions but with police organisations, the Criminal Bar Association, the Law Society, the Justices' Clerks' Society and the Magistrates' Association.
Baroness MACLEOD of BORVE: My Lords, I am grateful to the noble Lord.
Lord GARDINER: My Lords, may I ask my noble friend this. Was not the very full report of the Devlin Committee after two years' work very well received by the judiciary, the legal profession and the organs of public opinion? That being so, what has led to the result that the whole question of identification has now been referred all over again to a Royal Commission?
WELLS-PESTELL: My Lords, I did say that, within two months, my right honourable and learned friend the Attorney-General had issued guidelines to clerks of courts and also to chiefs of police. Since then, within a comparatively short space of time, in July 1976, something less than three months after the report was issued, the initiative—I think I can use that word—was taken by the Lord Chief Justice in an Appeal Court consisting of four learned judges and himself which considered the appeals of three persons who had been convicted of criminal offences and who had challenged

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their convictions on the ground of identification.
The noble and learned Lord the Lord Chief Justice and his legal colleagues applied the recommendations of the Devlin Committee, and took the opportunity of reinforcing the recommendations of the Devlin Committee by laying down that these procedures are, in fact, essential. This resulted in two of the appeals being allowed and one being disallowed. The very fact that the recommendations of the Devlin Committee are being used at the present time is, I think, sufficient, whatever else may be decided.
Lord GARDINER: My Lords, did not the Devlin Committee unanimously recommend that on at least five points the recommendations must be dealt with by legislation? Is it not the fact that whatever the noble and learned Lord the Lord Chief Justice says it does not alter the law?
Lord WELLS-PESTELL: My Lords, I thought that might well be asked. I took advice on this matter and I am told that legislation is not necessary. It can be done by administrative means.

CAREERS SERVICE AND ETHNIC MINORITIES
2.41 p.m.
Lord AVEBURY: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what guidance has been given to the Careers Service in England by the Secretary of State for Employment since 1st July 1977 concerning the needs and problems of young people belonging to ethnic minorities.
Lord WALLACE of COSLANY: My Lords, in August 1977 revised and updated guidance was issued to careers offices by the Careers Service Branch of the Department of Employment, giving information on the cultural and national characteristics of immigrants from certain Commonwealth countries and Pakistan. This was particularly for the use of staff
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called upon to deal for the first time with young people from ethnic minority groups.
Lord AVEBURY: My Lords, is the noble Lord satisfied that the guidance issued is adequate to meet the needs of the growing number of young people who are unemployed among the ethnic minorities? Could he say in particular what has happened to the proposal for 20 detached employment officers who it was agreed under the youth employment programme would try to reach those not seeking employment through the normal statutory agencies?
Lord WALLACE of COSLANY: My Lords, the 20 "outreach" officers have been appointed. Their idea is to go out and search for those who have not registered in the normal way, although it is too early at the moment to give results on that. The noble Lord asked me whether I was satisfied. With a tremendous problem like this—it is a tremendous problem—nobody can be satisfied until we have completely solved it. I would add this. In February of this year the Careers Service Advisory Council for England, chaired by the Joint Parliamentary Under-Secretary Mr. John Golding, considered a paper on the employment problems of young people from ethnic minorities. A revised version of this paper will be presented at the Council's next meeting in June and copies will then be sent to all principal careers officers.
Lord AVEBURY: My Lords, when the time comes to evaluate the work of the 20 detached officers, will the noble Lord, in conjunction with his colleagues, seriously consider an expansion of this operation, bearing in mind the very large number of young people who do not come through the statutory agencies and who might benefit if they knew the employment opportunities that were available?
Lord WALLACE of COSLANY: Yes, my Lords, certainly. I also draw attention to the fact that relationships with clients of ethnic minority groups is a subject included in the full-time initial training of careers officers, and there are also specialist in-service courses for careers officers in areas where there are significant numbers of minority groups. The

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whole process is geared to try to raise the efficiency and experience of the careers officers to work with the "outreach" officers in order to try to solve this tremendous problem.
Lord HARMAR-NICHOLLS: My Lords, is the noble Lord aware that, while the sentiments behind this Question and the answers are above question and indeed are to be applauded, we ought to recognise the atmosphere that unhappily prevails in certain parts of the country? We ought not to give the impression that the needs and problems of young people of all groups, the indigenous population and everyone else, are having the highest possible priority by the careers officers. The intention behind the Question is good, but, as it is presented, perhaps the last four words could give the impression that extra priorities are being given. It could cause trouble if that view was generally accepted.
Lord WALLACE of COSLANY: My Lords, I am happy to assure the House that the Government's programme for job opportunities and many other schemes run in conjunction with the Manpower Services Commission is available to all, irrespective of race, colour or creed. When we talk about the ethnic minorities we should remember that there are also disadvantaged young white people. It would be wrong to assume that this is a major problem and the other one does not count. This is a side issue affecting certain people but not the great majority.
Lord AVEBURY: My Lords, would the noble Lord agree, following Lord Harmar-Nicholls's question, that the young people among the ethnic minorities have been disproportionately hit by the recession, and that the unemployment rate among the ethnic minorities is many times higher than among the white communities?
Lord WALLACE of COSLANY: My Lords, that was the case, but I am happy to say that there are signs that this is dropping down now. There are many side issues on this, such as language problems and training in English. Courses are being carried out by voluntary organisations, and so on. It is perfectly true
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that what we can do is being done, and more needs to be done.
Lord HARMAR-NICHOLLS: My Lords, is the noble Lord aware that Lord Avebury's supplementary question adds to the very point I was trying to make? Is he aware that to suggest that any group is being disproportionately hit, when other groups feel that they are in the depths of despondency irrespective of their race, colour and ethnic origin, is one of the problems that we have to try to overcome without appearing to show a priority to one group as against another?
Lord WALLACE of COSLANY: My Lords, with all due respect to the noble Lord, I do not disagree one atom with Lord Avebury's intention. He has concentrated his energies and experience on this particular problem, and the House should be grateful for someone who is giving attention to a problem that some people would not like to see appear on paper.

EMPLOYMENT: COMPENSATORY PROGRAMMES
2.47 p.m.
Lord AVEBURY: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how the Manpower Services Commission monitors the effectiveness of its programmes for workers who suffer disadvantages in the search for jobs because of race or colour, and what new initiatives it has taken on this matter during the year to 31st March 1978.
Lord WALLACE of COSLANY: My Lords, this Answer is somewhat long, but it is an important Question. I am informed by the Manpower Services Commission that the following initiatives have been taken during the year to 31st March 1978. The Special Employment Needs Development Programme was introduced in autumn 1977 for a one-year experimental period. This programme gives special help to job seekers who are faced with difficulties, other than

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disability, which prevent them from entering or settling in work. This includes difficulties arising because of race or colour. Information will be gathered on the kind of people who are helped and on the success achieved in assisting them to secure employment or training.
The MSC have for some time funded experimental training courses provided by voluntary organisations for young people from ethnic minorities who need to be approached other than through public placing services. Five such experiments began during the year in question. All courses are closely monitored with special attention being paid to the rate of placing after courses, the acquisition of skill and knowledge and the effectiveness of any life and social skills training or other special features. Two pilot language courses for unemployed immigrants have been held at West Yorkshire Language Link and Waltham Forest CFE. The courses are currently being evaluated.
In setting up the new Youth Opportunities Programme account was taken of the needs of deprived young people including those from ethnic minorities. A section of the Special Programmes Division head office has special responsibility for promoting schemes for disadvantaged young people and for monitoring the effectiveness of the new programmes in catering for the needs of these young people. Statistics gathered under the new programme will include information on country of origin of participants and their parents. The MSC recommended the appointment of 20 "outreach" officers who would have special responsibility for helping those who do not register as unemployed. In particular this provision, which is being made by the Careers Service, will help members of ethnic minorities who are alienated and out of touch with the statutory services.
Lord AVEBURY: My Lords, is the noble Lord aware that that is an extremely useful reply, summarising the work of the Manpower Services Commission over the past year, which will be helpful to those who have to try to co-operate with it in its programmes? Did the noble Lord say that, in monitoring the effectiveness of the programmes, records would be kept of the ethnic origin of those assisted? I understand that will he the case in the new programmes which were
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announced in February. If that is so, could the Minister say whether it is the general policy of Her Majesty's Government that, in assessing the effects of schemes designed partly to benefit ethnic minorities, there will be a general requirement that ethnic records should be kept? For example, should they be kept by the local authorities, who are under an obligation under Section 71 of the Race Relations Act, to apply services for the benefit of ethnic minorities within their areas?
Lord WALLACE of COSLANY: My Lords, I regret I am unable to give an immediate answer to the noble Lord, but I will certainly obtain the information and see that he is advised.
Lord CARR of HADLEY: My Lords, does not the response to these last two Questions stress the need for something we have not yet got in this country; namely, a genuine strategy for reducing unemployment?
Lord WALLACE of COSLANY: My Lords, this is a problem not related to Britain alone: it is being considered by the European Communities and many other nations. We ourselves have a policy, but the noble Lord's Party policy differs from ours.
Lord BROCKWAY: My Lords, while greatly appreciating that detailed reply, may I ask whether the noble Lord made particular reference to young people? Is he aware that they suffer from two frustrations? First, they are often in conflict with their families because they have learned new behaviour in this country; and, secondly, they are in conflict with society because so many of them are unemployed. Will Her Majesty's Government show continued energy and activity in trying to solve the problem of unemployed young people?
Lord WALLACE of COSLANY: My Lords, that is the very purpose of the reply that I have given. Furthermore, as mentioned in the Answer to the first Question of the noble Lord, Lord Avebury, special information is being given to careers officers so that they can appreciate all the difficulties of background that a great number of people do not appreciate.
Lord AVEBURY: My Lords, obviously these programmes or, anything like them, do not eliminate unemployment. Will the noble Lord confirm that, under the Youth Opportunities Programme, in a full year 234,000 jobs will be created for 16, 17 and 18-year-olds? Will there be statistics published regularly of how many young people have been helped under these programmes, giving details of the ethnic minorities, where applicable, to which they belong?
Lord WALLACE of COSLANY: Yes, my Lords, statistics will be published and the Department of Employment Gazette will provide the information. I have some available, and the noble Lord can obtain it.
Lord HARMAR-NICHOLLS: Is the noble Lord aware that, if ethnic groups are discriminated against in the report, as is suggested, it can only be a breeding ground for trouble? One group or other, on reading the figures, are bound to protest that they are not getting the same treatment or the same emphasis on help as others. Is the noble Lord aware that there is no difference between what any of us want, but that this business of identifying the various groups in respect of help received may well be grounds for creating the kind of trouble that we are all trying to avoid?
Lord WALLACE of COSLANY: My Lords, there is no question of discrimination so far as the Government, or the Manpower Services Commission, are concerned. This is only a facet of a special problem related to the whole picture. Unfortunately, so far as discrimination is concerned, it is in the hearts and minds of people who should know better. That adds to the problem.

SCOTTISH CIVIL SERVANTS
2.54 p.m.
Lord CAMPBELL of CROY: 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 civil servants are employed in or by the Scottish Office and how many of these are members of the
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Prison Service or staff of mental or other hospitals, including Carstairs.
The MINISTER of STATE, SCOTTISH OFFICE(Lord Kirkhill) My Lords, on 1st March, 10,474 staff were in post, of whom 2,536 were employed in the Prison Service and 351 in the State Hospital, Carstairs.
Lord CAMPBELL of CROY: My Lords, I am grateful to the noble Lord for that reply, because different figures have been bandied about and the situation can be confused by the inclusion of prison warders and nurses. Their numbers are related to the amount of crime in Scotland and the success of the police. As regards the others—civil servants normally recognised as such—will the Government make a re-assessment of the effects of the Scotland Bill? The manpower memorandum in that Bill forecasts a net increase of 750 civil servants in Scotland, which many of us regard as excessive as the Scottish Office would have less to do.
Lord KIRKHILL: My Lords, the Scottish Office itself, as presently constituted, will of course perform many fewer functions after devolution, as the noble Lord will readily understand; but the devolved Assembly civil service structure w ill require additional staff because there is the question of new function, block grant and that sort of thing. It should not be denied that there will be a loss of economy of scale, because there will be a certain split in the Scottish Office divisions—the Finance Division is an example. I think the new legislation is going to make heavier demands upon civil servants themselves, because they are going to have to service a Legislature which will no doubt set up Standing Committees and so on. I think that, by the very nature of the political beast which the Assembly undoubtedly will be, there will be a demand for increased provision of services in Scotland and I suppose that that in itself will lead to the need for some additional civil servants.
Lord GLENKINGLAS: My Lords, will the Minister bear in mind that all Scottish civil servants are good but that some are better than others? If it happens that we have an Assembly, will the Scottish Office take great care to put some

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of their best people to look after it, rather than use the opportunity to get rid of some of the less good?
Lord KIRKHILL: My Lords, we must allow the Civil Service its own job opportunity.
Lord INGLEWOOD: My Lords, may I ask the noble Lord whether, following the comment that the civil servants in Scotland might increase by about 750 following devolution, he can give an assurance that the total of civil servants in England will go down by the same number?
Lord KIRKHILL: Mercifully, my Lords, my remit stops short at the Border!
Lord MACKIE of BENSHIE: My Lords, can the Minister tell us what increase there was in the number of local government civil servants following the reorganisation of local government which was carried out some four years ago?
Lord KIRKHILL: Not without notice, my Lords; but I have the figures in my office and I will write to the noble Lord.

NORTHERN IRELAND: REPRESENTATION AT WESTMINSTER
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, with the leave of the House, my noble friend Lord Melchett will, at a convenient moment after 3.30, repeat a Statement on Northern Ireland representation at Westminster.

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.]
Clause 19 [Scrutiny of Assembly Bills]:
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 87:
Page 8, line 25, at end insert—
("( ) if so required by resolution of either House of Parliament the Secretary of State shall refer the question referred to in subsection (1)(a) or (1)(b) of this section to the Judicial Committee of the Privy Council for a decision".)
The noble Earl said: I beg to move Amendment No. 87, which is tabled in the name of my noble friend Lord Colville of Culross and myself. We are still dealing with Clause 19 of the Bill which relates to the creating and scrutiny of Assembly Bills. The point really is this: if the Secretary of State is minded to refer an Assembly Bill to the Judicial Committee of the Privy Council, one asks a number of questions and they begin to become political rather than legal questions at this juncture.
In the first place, who is going to advise the Secretary of State? I have no doubt that he will be advised by the civil servants and probably also by one or more Law Officers of the Crown, whether they come from Scotland or England or both. But somebody will have to advise him that under subsection 19(1) the matter is one which will have to be referred.
The second matter which one must consider is this. There may well be a situation which arises where there is intense public interest—if "interest" is the right word—in the progress of a Bill emanating from the Scottish Assembly. It may be that it seeks to divert or, at any rate, to change quite dramatically the rights of a body of citizens. For instance, it could be something to do with agricultural tenure, which falls within Schedule 10 as being part of the devolved power. It could be something which had quite profound effects upon people on both sides of the Border.
In the end, as I read Clause 19, it is a political matter for the Secretary of State to decide, on advice, whether or not a matter should be referred to the Judicial Committee. The question that I want to ask the noble and learned Lord, which has really caused us to put down this Amendment, is this: What happens if

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the Secretary of State will not act? What happens if he will not move? Is there any way in which he can be questioned in Parliament? I suppose that he could. I suppose that somebody in the other place, or in your Lordships' House, could put down a Question to the Government, asking: Why has not the Secretary of State moved? Is the Scottish Bill to become an Act and go on the Statute Book, without anything being done?
We tabled this Amendment because we thought that what might be called a "long-stop" was perhaps required. For instance, if the Secretary of State genuinely believed, on advice, that something was not a matter for the Judicial Committee, or decided that as a political matter he would not refer it, then under the terms of our Amendment it would be open to either House of Parliament, by Resolution, to require the Secretary of State to make the reference. I fully appreciate that this Amendment was drafted before we considered Amendment No. 83, and that therefore the drafting is defective. Nevertheless, I am sure that the noble and learned Lord will see the spirit behind the Amendment, and what it is about which my noble friend and I wish to be reassured. I beg to move.
3.3 p.m.
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey): The Amendment, and the speech of the noble Earl in introducing it, give me an opportunity to add a little to what was said yesterday in the course of discussing an earlier Amendment. Therefore, the questions arising on this Amendment are close to those which we have already discussed. We are concerned here with the Secretary of State's duty to form an opinion about the vires of an Assembly Bill, and the question which the Amendment raises—leaving aside any technical deficiency—is: Should Parliament have any say in deciding that a Bill should be referred to the Judicial Committee? More specifically, to put it in a different way, should Parliament have what, in substance, is a right to challenge the opinion of the Secretary of State? The Committee has already traversed the nature of the duty which is created by Clause 19. What is at issue here is an opinion formed
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by the Secretary of State, on the basis of the best advice available to him, and, as my noble and learned friend the Lord Chancellor made clear yesterday, he would have access to advice from the Scottish Law Officers, from the Attorney-General and the Solicitor-General in England and, indeed, from departmental lawyers.
I am a little surprised that the noble Earl should say that, in the end, this is a political matter, because the question is: Does a provision in a Bill fit within the powers conferred upon the Assembly by the Scotland Act? That is a legal question. In answer to the noble Earl's question about what happens if the Secretary of State will not do something in a case, where the assumption is that he ought to do it, I would remind the Committee that there is a post-Assent judicial review. A Secretary of State who had cause, in terms of a Bill, to refer to the Judicial Committee, would surely be very unwise indeed if, knowing that there was to be a post-Assent judicial review, he did not in fact refer.
The Secretary of State, acting upon such advice, then forms an opinion and acts in accordance with it. It is an opinion upon a set legal matter. The Government do not consider that Parliament has any proper and relevant role in relation to that matter. As I think the noble Earl would be the first to acknowledge, it would be a mistake to risk introducing political considerations into what is basically a legal question. The Secretary of State will not be acting lightly or unadvisedly, and it would be a most unhappy result if either House were to debate a Resolution seeking to require a reference, against an opinion formed by the Secretary of State acting on behalf of the Government. Certainly, the House itself would not be determining any question arising. But it is difficult to see how it would appear as anything but a political challenge to the Government's view on a legal matter of vires, and it would be bound to give a political edge to what is at heart a non-political question.
As the noble Earl himself foreshadowed, there are some ways in which Parliament can interest itself in the matter. There is no shortage of ways and he mentioned some, such as that Questions can be asked in Parliament and various other courses. But we think that it would be a mistake

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to give Parliament a formal role in relation to this matter. I do not know whether this is covered by what the noble Earl suggested might be a technical deficiency in the Amendment, but your Lordships will notice in it the word "either". So what is envisaged is that either House of Parliament may decide to refer the matter to the Judicial Committee. That could mean that the House of Lords alone required a reference to the Judicial Committee, even if the Assembly and the Government of the day, acting through the Secretary of State on advice, judged that it was not required. Whatever its merits that could certainly he politically explosive, as I think the noble Earl will have to acknowledge. Therefore, that again could introduce a political dimension.
I have mentioned those considerations. Perhaps one of the most important is the existence of post-Assent review, and surely that is a sufficient safeguard against any temptation not to refer a question that ought to be referred. For those reasons, I invite the noble Earl to reconsider his position on the principle of this Amendment.
3.8 p.m.
The Earl of MANSFIELD: I must say that I am far from satisfied with that answer. After the number of times that the Attorney-General in this Parliament has found himself near a law court on matters which were purely political, I find it extraordinary that the noble and learned Lord should try to pretend that this is purely a legal matter, and that in no circumstances would a Secretary of State act otherwise than on whatever advice was available to him; and, furthermore, act in a manner which was entirely dictated by legal considerations and not by political considerations. As I say, it is scarcely conceivable that a political animal could be motivated by that alone.
Furthermore, the political animal is not a Law Officer, and what he must do is take such advice as he is given and then consider—no doubt with his Cabinet colleagues—whether a reference is to be made, in an atmosphere which I have tried to show could well be highly charged politically, and could cause immense repercussions on either or both sides of the Border, according to whether he
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referred or did not refer the matter to the Judicial Committee.
One can see the explosive nature of these repercussions, simply by reading the reports in the Scottish papers today about the first Amendment which I moved yesterday in your Lordships' Committee. On the very idea that an Act of Parliament should remain in force until it is, as it were, repealed or changed either by an Act of Parliament or by an Act of the Assembly, it is fair to say that many of the newspapers took the same point as the noble and learned Viscount, Lord Dilhorne. I shall not again go over all that ground, because it was a wrong point; but the fact remains that before very long there will, I am perfectly sure, be intense political feeling if this Bill becomes an Act and if the Assembly comes into being.
Then the noble and learned Lord went on to complain that it would not be right if this House alone could in effect require the Secretary of State to act. I do not know why the noble and learned Lord should say that, unless he is acting in a thoroughly political and not very judicial way. What better forum could there be for discussion on a Motion as to whether the Scottish Assembly was behaving in a way which was intra or ultra vires?
Lord McCLUSKEY: May I intervene at this point to make it clear to the noble Earl that I have obviously been misunderstood by him? I was not going into the merits of that question. I was saying that if, in fact, the Assembly took the view that the provision was intra vires and the Secretary of State formed no contrary opinion, then, in effect, the House of Lords would be brought in. If it formed a different opinion, there would, whatever the merits of the role of the House of Lords, be possibilities of conflict, about which I express no view.
The Earl of MANSFIELD: The noble and learned Lord really must not deny me a little opportunity to pull his leg! However, I maintain what I said. I do not think that there is any better forum than your Lordships' House for making such a Resolution. I verily believe that it would be better dealt with in the calmer atmosphere of this House—and certainly

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more logically than in the other place. The question arises as to whether this long-stop provision is, as I have sought to show, possible and, indeed, desirable politically. The matter is one which should perhaps be reconsidered, and for today I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 88, 89, 243 and 244 not moved.]
3.13 p.m.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 90:
Page 8, line 30, at end insert ("but the decision shall not hind any court which considers that question in the course of any subsequent proceedings").
The noble Earl said: I beg to move Amendment No. 90. One comes now to the question of the effect of a decision of the Judicial Committee in relation to any Bill which is referred to it under Clause 19. The matter was touched upon yesterday by several speakers in your Lordships' Committee during the course of the debates, particularly in relation to the Northern Ireland Act. I have done a little research and there is but one case which seems to fit the circumstances. The argument there was whether an educational levy under Section 3 of the Finance Act (Northern Ireland) 1934 was intro Tires. To quote my noble and learned friend, the chairman on that occasion was the noble and learned Viscount, Lord Hailsham, and I am sure that they were not scraping the bottom of the barrel.
Lord HAILSHAM of SAINT MARYLEBONE: That was my father.
The Earl of MANSFIELD: Otherwise the personnel sitting were, if I may say so, different from those with which my noble and learned friend regaled the Committee last night. However, the point of the case—which is reported at page 352 of the 1936 Appeal Cases and which decided that the Northern Ireland Parliament was perfectly entitled to act in the way that it did—was that in fact the Judicial Committee was acting on a question which was put to it—if I say in a vacuum I hope that I shall not be
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misunderstood. No facts were presented to the Judicial Committee. It was given the problem and it pronounced in the way that it did.
The matter which then comes to be considered is: how shall an individual who may face court proceedings of one kind or another comport himself in a situation after, let us say, a Bill has been submitted to the Judicial Committee by the Secretary of State and it has pronounced? And, of course, it would have pronounced either in favour of the Bill or in favour of the Assembly.
There are two utterly opposing viewpoints in Amendments Nos. 90 and 91. The situation which my noble friend and I visualise is perhaps a matter of criminal law where somebody finds himself on what I might call the wrong side of the dock by reason of a Scottish Bill which has finally received the blessing of the Judicial Committee. Is he then to be estopped from putting forward as a defence that the Scottish Assembly was acting ultra tires? We considered the matter and put forward for the consideration of the Committee the Amendment to which I have spoken: that in fact any court considering these matters would not be so bound by a question which had been answered by the Judicial Committee. It may be that the noble and learned Lord will say that the situation is perfectly adequately enshrined in the Bill or can be gleaned from it. Equally, he may say that for other reasons there is no need for an Amendment of this nature. However, the Amendment has been put down to test the situation. I beg to move.
Lord SHINWELL: May I—
Viscount DILHORNE: It might be for the convenience of the Committee if we discussed Amendment No. 91 with this Amendment. That is why I have risen to my feet, although I am perfectly prepared to sit down again in order to allow the noble Lord, Lord Shinwell, to rise to his feet again so that I may hear what he has to say before I> speak in relation to Amendment No. 91.
Lord SHINWELL: I am very grateful to the noble and learned Viscount, Lord Dilhorne, for withdrawing in order to allow me to offer a few observations. I

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am beginning to wonder now whether I should have accepted his offer, because it may well be that I shall get a proper trouncing from him after I have developed my argument. I spent a good deal of time yesterday in your Lordships' Committee listening to a wrangle—that is what it amounted to in the long run—between the judicial fraternity for whom I have very much respect. But sometimes I cannot follow them very well, naturally enough, since I have no knowledge of legal matters.
I have risen to my feet for this reason. I wonder whether the noble Earl, Lord Mansfield, can tell us what he is really driving at. Is the noble Earl seeking to impose restrictions upon the proposed Assembly when it is created so as to make it difficult for them to proceed with legislation? And even when they do debate legislation and pass it, according to their procedure, such as it might be—I have no idea what it is likely to be but there will be some kind of procedure—there is then to be a reference to the Judicial Committee of the Privy Council when some difficulty of a legal character emerges. Then difficulties will arise when it is said that a decision made in open court shall not be binding on any other court if there are subsequent proceedings.
What are the subsequent proceedings which the noble Earl, Lord Mansfield, has in mind? I should have thought that, having gone through the various ingredients of a Parliamentary system which in Scotland will follow pretty well the methods employed at Westminster, and then after reference of an intricate and erudite and difficult problem of a legal character to the Judicial Committee of the Privy Council, and a decision being reached, even then the Assembly will not know where it is. Is that what the noble Earl is driving at? In other words, is he seeking to make difficulties for the Assembly?
The Earl of MANSFIELD: My Amendment has nothing to do with the Assembly or its deliberations. By the time my Amendment comes in, so to speak, one hopes that the Assembly will have gone on to other business. This is to try to make some certainty of how the individual citizen comports himself long after the Assembly has finished with its Bill.
3.22 p.m.
Viscount DILHORNE: The last thing I would want to do would be to treat my seniors with any degree of disrespect, and I am alarmed that the noble Lord, Lord Shinwell, should think that I might endeavour to trounce him. I am quite sure that if I did I should fail, but I have no intention of attempting to do so. Yesterday we discussed some very important questions; namely, who should have power to make a reference to the Judicial Committee and when and in what circumstances. After a very entertaining debate, which I was surprised to hear the noble Lord, Lord Shinwell, refer to as "a legal wrangle", after the speeches of my noble and learned friends Lord Wilberforce and Lord Morris of Borth-y-Gest and Lord Diplock, the Committee decided to reject the proposal put forward by the noble and learned Lord, Lord Wilberforce, to attach a new label to an old and slightly adulterated bottle of wine.
Lord WILBERFORCE: The noble and learned Viscount is slightly exaggerating the position. No decision was reached.
Viscount DILHORNE: I often do. The noble and learned Lord must not be so sensitive about that; I was replying to the noble Lord, Lord Shinwell. I happened to notice during that debate that the noble Lord was very alert and seemed to be thoroughly entertained and now to describe it as "a legal wrangle" is a little unkind.
Today there has been raised by the noble Earl, Lord Mansfield, an even more important question to my mind; namely, what is to be the effect of a decision of the Judicial Committee on a reference? As I understand the Bill, if the Judicial Committee, on a reference by—as I think it should be—the Lord Advocate, decides that a Bill or any provision in it is ultra vires the Assembly, that is final. That Bill containing that provision cannot be submitted to the Royal Assent. It cannot become law. But the Bill we are considering does not state in terms what are to be the consequences if the Judicial Committee says that the Lord Advocate was wrong; this Bill is infra vires the Assembly. That is a decision by the individuals to whom the noble and learned Lord, Lord Hailsham, referred yesterday; and I may tell him as a matter of interest that, no doubt in consequence

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of his observations, a Daimler car was in fact providcd this morning, but by those individuals and they will decide that it is infra vires. If they decide that it is ultra vires, that is final; if infra vires then the noble Earl puts forward an Amendment that despite that decision the question of the validity of that particular measure can be challenged in any court at any time in the future. I think that really is wrong.
After the speeches we heard yesterday, it should not be necessary to remind your Lordships that if it went before the courts, as it could after what the noble Earl has proposed, and it finally came up to this House of Lords sitting in its judicial capacity and before (it might be) the same individuals who decided the question of validity in the Judicial Committee, the decision of this House would be final and binding. It seems to me rather curious that in these circumstances, when there has been a reference, we should not get fidelity to the decision of the Judicial Committee, whichever way it goes. If there is a reference by the Lord Advocate and it comes before the Judicial Committee I would think it almost certain that every provision of that Bill would be the subject of examination. If it was said to be ultra vires, that is that. If infra vires, as the Bill stands I do not think it is final. I think it should be.
I have already spoken several times in the course of the Committee's debates about the uncertainty which will attach due to the post-enactment challenges to Assembly Acts, and of course if you want the greatest possible measure of uncertainty then indeed you will make it possible to challenge in the courts, it may be years after the decision of the Judicial Committee, that decision of the Judicial Committee that a particular Bill was in the power of the Assembly. I think that is wrong; it is carrying uncertainty too far. The noble Earl said he was concerned with the criminal procedure. Of course there is no appeal from the High Court of Justiciary to the House of Lords on any criminal matter and that is not altered by this Bill. That is kept as it is, but I put forward the suggestion to the Committee that it really would be a great nonsense to make only a decision of the Judicial Committee that a Bill is ultra vires, final and binding.
Lord HAILSHAM of SAINT MARYLEBONE: If I may I should like to probe, and I hope that the noble and learned Lord the Lord Chancellor will be able to answer some of my questions. I am not sure that I agree with either extreme, that is to say, either extreme contained in Amendment No. 90 or in Amendment No. 91. I think the problem is perhaps a little more complex than either extreme would allow. The first question to ask is, what is the effect of the Bill if neither Amendment were passed? As I understand it, if the Bill were not altered the effect of the Privy Council decision on a reference would be advisory only.
Why do I say that? I say it because the decisions of the Judicial Committee when they are taken on appeal from, let us say, a State in Australia or one of the Caribbean countries are no doubt binding on the inferior courts of that country as being part of the law of Australia or being part of the law, say, of Trinidad. But if you read in the appeal cases as reported year by year in the Law Reports, a decision of the Privy Council in either such case, and you want to cite it in the courts of England or Scotland, I believe —and in the case of England I may say that I know—that decision, if it is on a comparable point, is treated with the greatest respect and would probably be followed by either the Court of Session or by the High Court in England, but they are under no obligation to do so.
I may be wrong because nobody who has heard these various legal discussions can doubt—I hope no layman will doubt and no lawyer will doubt—that this is a very complex Bill indeed and one's first impressions may very well be wrong. I believe, however, that if the Bill stands as it is, although of the very greatest weight, the technical position would be that the opinion of the Judicial Committee on the referendum would be binding only to the extent that the Assembly Bill would then be presented to Her Majesty in Council for Her Royal Assent and would still be subject to post-enactment review in which the decision of the Judicial Committee would be of the very highest persuasive authority but not a binding authority. I may have got that wrong and, if I have, I hope that the noble and learned Lord when he comes to reply will tell me so.
Lord SHINWELL: When the noble Lord says that the proceedings might go on and on it reminds me of one of Dickens' books—Jarndyce v. Jarndyce where the case went on and on for ever amen. That is what happens. First it goes from the Assembly. The Secretary of State is consulted. He takes a certain decision and something is referred to the Judicial Committee of the Privy Council. But even when they have come to a decision, some other undefined court—it may be an EEC court, an EEC decision or the international Court of Justice or some Human Rights Commission—comes to a decision. How long is this going on? Meanwhile the people in this country are waiting for a decision.
Lord HAILSHAM of SAINT MARYLEBONE: I think the noble Lord has not quite appreciated that I was seeking to describe what the effect of the Bill would be if neither of the two Amendments under discussion was passed. I do not want to proceed along the lines of Jarndvce v. Jarndyce but I think I am right, and if I am wrong I hope the noble and learned Lord the Lord Chancellor will tell me and also tell us why I am wrong. If nothing is done, that is to say if the Bill stands without either Amendment, I think that technically the advice of the Privy Council is binding only on the Secretary of State, who has then to submit it to Her Majesty in Council for assent and thereafter it could be challenged in judicial proceedings although it would be a very bold judge of first instance who would not follow it. I think that is the situation without the Amendments. I do not think that my noble friend's Amendment probably alters that, although I may be wrong. He said it is advisory only, and I suppose that rather describes the status quo as I am suggesting it.
The noble Viscount's Amendment No. 91 does alter it. It says that the decision, when made, should be final. I should like to analyse that and again ask the noble and learned Lord to comment upon my analysis to see if I have got it right and, if I have, to see what is the Government's thinking about it. One must visualise two quite separate situations, and it may be that one ought to give a different answer according to which of the two is visualised. First, the section as it stands, Section 19, provides that either the whole
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Bill can be referred to the Judicial Committee, or alternatively a provision in the Bill can be referred to the Judicial Committee. They are quite different situations.
Supposing a particular provision in the Bill is referred to the Judicial Committee my first inclination, as my noble and learned friend on the Cross Benches proposes, is to think that the decision being directly in point ought to be final and conclusive. I do not think it is sensible for the kind of reason that the noble Lord, Lord Shinwell, was becoming interested in: that having gone through the ghastly process of reference and argument and final decision and submission to Her Majesty in Council a particular provision should then be challenged in the courts even though—and I do not retract what I was saying in the middle of last week—the liberty of the subject might be involved in the subsequent challenge in so far as the decision is in point.
Let us now consider the alternative situation. I am sorry to make this rather complicated but I think it is worth while delving a little. The alternative situation is that the whole Bill is referred to the Judicial Committee. Let us assume that two learned counsel are employed—and I suppose there will be an advocate employed to support the legality of the Bill and that advocatus diaboli briefed, and I hope well paid, to attack the vires of the Bill. Supposing that during the course of that reference, because of the fallibility of human nature, points (a), (b) and (c), are argued and decided by the Judicial Committee one way or the other, I quite see that that ought to be a binding decision. I think that the noble and learned Viscount on the Cross Benches has a good point there, because, again for the same reason as I gave in case number one, I think it would be intolerable to argue it all over again.
The purpose of pre-enactment review is —if I may use a vulgarism—to take the bugs out of the Bill if there are any. But supposing, owing to the fallibility of human nature and despite the fact that points (a), (h), (c) and (d) are argued and decided by the Judicial Committee, six months later a village Hampden, who is charged with an offence created by the Bill after it has received Royal Assent, proceeds to raise points (f), (g) and (h),

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none of which has been decided by the Judicial Committee. I do not believe that the mere fact that the Judicial Committee has given a white sheet to the Bill, enabling and indeed compelling it to be submitted to Her Majesty in Council, should deprive the subject, whose liberty may be in jeopardy, from raising a new point as to vires which could go up in the ordinary way.
My view, such as it is, is that this at some stage ought to be spelt out in the Bill. I believe this is the right answer. I should like the noble and learned Lord, if he is ready to reply either before or after the Statement on Northern Ireland, to consider the point, and if he is not ready to reply I should like him to reflect upon it before the next stage of the Bill.
Lord WINTERBOTTOM: My Lords, I beg to move that the House be now resumed.
Moved, accordingly, and, on Question, Motion agreed to.
House resumed.

NORTHERN IRELAND: REPRESENTATION AT WESTMINSTER
3.38 p.m.
The MINISTER of STATE, NORTHERN IRELAND OFFICE, (Lord Melchett): My Lords, I shall, with permission, repeat a Statement about the representation of Northern Ireland in another place, which is now being made in another place by my right honourable friend the Prime Minister. The Statement is as follows:
"A Conference was set up last July under your chairmanship, Mr. Speaker, to consider, and make recommendations on, the number of Parliamentary constituencies that there should be in Northern Ireland. The Conference reported in February of this year and its report was published as Command Paper 7110. I express the gratitude of the Government to you, Mr. Speaker, for presiding over that Conference, and to those right honourable and honourable Members who served on it.
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"The Conference recommended that the number of Parliamentary constituencies in Northern Ireland should be 17, but that, in order to be able to overcome practical difficulties, the Boundary Commission should be given power to vary that number, subject to a minimum of 16 and a maximum of 18.
"The Government accept these reccommendations and, as Parliamentary circumstances permit, will introduce a Bill to make the necessary amendments to the House of Commons (Redistribution of Seats) Act 1949. I should add that the time required to carry out the statutory procedures of the Parliamentary Boundary Commission for Northern Ireland, to fix the new constituency boundaries, is such that the next General Election will take place on the existing basis."
My Lords, that completes the Statement.
Lord BELSTEAD: My Lords, I thank the noble Lord for repeating this Statement and for accepting the recommendation of the Speakers' Conference, which incidentally was given by a majority of 22 members to one of the Speaker's Conference, that Northern Ireland should have increased representation at Westminster. But I am bound to say that I have considerable misgivings that the noble Lord on behalf of the Government was not able to give a straight undertaking to introduce a Bill to increase Northern Ireland representation at Westminster during this Session of Parliament, and I am mystified as to why Parliamentary time has not been reserved for this electoral issue. After all, the Speaker's Conference was set up with agreement between the Parties, and in the knowledge that Northern Ireland is underrepresented, four months before the opening of this Session. So the Government knew perfectly well that Parliamentary time was going to be needed.
On the grounds of size of electorate or areas of constituencies Northern Ireland is not just under-represented, it is grossly under-represented compared with England, Wales and Scotland. I would ask the Government seriously to reconsider the Parliamentary timetable in this matter. If the noble Lord on behalf of the Government is telling the House that while the Government can find time for devolution Bills for Scotland and Wales, which are already more than adequately represented

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at Westminster, and yet they cannot give any definite offer of Parliamentary time to implement the report of a Speaker's Conference for Northern Ireland, where there is neither devolution nor proper Westminster representation, then that is most unsatisfactory.
That, and the Statement made by the noble Lord, leads me to ask one fundamental practical question. When do the Government intend to introduce a Bill to give effect to this report? Even allowing, as the Statement says, for the pressures of the Parliamentary timetable, none the less when is it the Government's intention to do so? Do the Government accept the evidence which was given to the Conference that, following a Parliamentary Bill, the Boundary Commission could well take as long as four years to complete its task? If that is the case, then I really do think that your Lordships this afternoon ought to be told whether by delaying now it is the Government's intention to be content to allow not one but probably two General Elections to pass before Northern Ireland is adequately represented at Westminster.
Lord WIGODER: My Lords, we on these Benches would also like to thank the noble Lord for repeating the Statement. We are not so grateful for the contents of the Statement, but, as the noble Lord will be aware, reports of Speaker's Conferences almost invariably fill my noble friends on these Benches with unwanted gloom. May I ask the noble Lord three questions. First, when the Government come to legislate, will they bear in mind that both Houses of Parliament have now recognised that in order that the minority in Northern Ireland can be fairly represented at the European Assembly, a form of proportional representation is necessary? Secondly, will the noble Lord agree that it is essential, for the prospects of long-term peace in Northern Ireland, that the minority should feel that they are fairly represented in the Westminster Parliament? Thirdly, if so, what do the Government propose to do about it?
3.44 p.m.
Lord MELCHETT: My Lords, I am grateful to both noble Lords for their comments on the Statement. I did not, of course, say that the Government would
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not be introducing a Bill in this Session of Parliament. The Statement which my right honourable friend the Prime Minister has made says that the Government will do so "as Parliamentary circumstances permit". Noble Lords are aware that this is a constitutional Bill; although it will be a short amending Bill, it will be a constitutional matter which will take -up time on the Floor of another place. It is not a simple Bill to take through both Houses of Parliament. Added to that, it is quite clear that it would not affect the holding of the next General Election whether the Bill is taken through Parliament in this Session or the next, because it is bound to take longer than the time that there could possibly be between now and the next General Election to get the boundaries redrawn by the Boundary Commission and to go through the procedures that have to be gone through. Nevertheless, the Government would not accept that it is likely to take as long as the time the noble Lord, Lord Belstead, quoted, four years. Our information is that it is likely to take about two years for the Boundary Commission to complete its work, even with the maximum number of objections to its proposals, which in the normal course of events would be a maximum of two, as I understand it, on the particular proposals.
The noble Lord, Lord Wigoder, asked me about a favourite theme of his Party, if I may say so, proportional representation. Certainly the Government have recognised, and all Parties have recognised, the need for and the desirability of holding elections by proportional representation in Northern Ireland. But it has also been the view taken by the major Parties at Westminster that it would not be desirable to have elections to another place in some parts of the United Kingdom held on one basis and in other parts held on a different basis, and that remains the position. I would certainly expect that the additional seats which will be going to Northern Ireland will assist both the minority Party and the majority Party to be better represented at Westminster, and that is clearly desirable. But it is also the policy of Her Majesty's Government, and as I understand it of other Parties at Westminster, that the best prospects for long-term peace and stability in Northern Ireland lie in achieving a devolved administration

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in Northern Ireland itself which is acceptable to the minority and majority populations; that remains the Government's policy.
Lord TRANMERE: My Lords, can the noble Lord say whether there is any precedent for delaying implementation of a recommendation of a Speaker's Conference? Is it not the case that on all previous occasions when a Speaker's Conference has made a recommendation the Government in power have said that they would implement it as quickly as they could?
Lord MELCHETT: My Lords, that is what this Government have said about this Speaker's Conference recommendation.
Lord HARMAR-NICHOLLS: My Lords, surely the noble Lord would not want to dispense with precedent quite as casually as that. I should have thought my noble friend's question was very relevant. It is not the first time we have had to alter boundaries. Particularly at this time in this House what representation should he to be fair is a very sensitive subject. I should have thought that a more detailed answer ought to be given to my noble friend's question in order to satisfy all of us who have listened to it.
Lord MELCHETT: My Lords, I am at a loss to know in what way I have suggested we are not following precedent. The Government have said that we will introduce this measure as soon as there is time in Parliament for it to be carried through. I am not aware of precedents in the past deviating from that, and the Government are not deviating from precedent in this case.
Lord BELSTEAD: My Lords, my noble friend's question could easily have been answered if, instead of saying that "as Parliamentary circumstances permit" the Government will introduce a Bill, this Statement had said "as Parliamentary circumstances permit and as soon as possible". That is what the Statement does not say.
Lord MELCHETT: My Lords, I have now said that we will introduce this
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measure as soon as possible and as Parliamentary circumstances permit. I really do not think we are carrying the discussion very much further forward.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, I was greatly reassured to hear from the noble Lord that the Government have not abandoned the hope of a devolved system of Government for Northern Ireland, because I personally—and I speak only for myself in this matter—believe that there will never be peace there until that is restored. May I ask the noble Lord to give this assurance to the House, therefore, based on that assumption, which I gather we share, that despite what they propose to do in this Statement they will not cease to endeavour to create a situation in which devolved Government is introduced and is the norm for Northern Ireland?
Lord MELCHETT: My Lords, certainly that remains very firmly the Government's policy. My right honourable friend the Secretary of State has repeated on numerous occasions to all representatives of both communities in Northern Ireland, and indeed to others who take an interest in Northern Ireland, that that remains very firmly our policy. The proposals which my right honourable friend put to the representative political Parties in Northern Ireland remain on the table. Discussion has not been closed on those proposals as far as we are concerned, and it is our earnest hope that representatives of both communities in Northern Ireland will come together and agree proposals which are acceptable to all parts of the community.

SCOTLAND BILL
3.50 p.m.
House again in Committee on Amendment No. 90.
Lord DIPLOCK: My Lords, without one or other of the Amendments which we are now discussing—namely, Amendments Nos. 90 and 91—the Bill would, in my view, be incomplete. It is, at present, silent upon whether or not a decision of the Privy Council under Clause 19 that an Assembly Bill is
"within the legislative competence of the Assembly".

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is binding if an attempt is made to attack the vires of that Bill thereafter. I am inclined to think, with my noble and learned friend Lord Hailsham of Saint Marylebone, that it is probably not binding but only persuasive. I say "probably" because it is not, I think, a matter upon which any lawyer could speak with certainty because we have a novel kind of jurisdiction. It is not like the Privy Council exercising jurisdiction in respect of some overseas territory of the Crown: it is the Privy Council exercising jurisdiction here in the United Kingdom. Therefore, I should regard the matter as uncertain as it stands at present and it is consequently highly desirable that the Act should be explicit on this point.
Speaking of uncertainty brings me to my reasons for supporting Amendment No. 91 which would make the decision of the Privy Council in a pre-enactment matter, on questions upon which it had decided, binding upon all courts thereafter. Last week, we discussed a proposal by my noble and learned friend Lord Dilhorne, supported by the noble Lord, Lord Home of the Hirsel, which would seek to make an Act unattackable once it had received the Royal Assent. There was a good strong feeling in the House about the desirability of certainty—a feeling that people should know where they stand once the Bill has received the Royal Assent and is an Act of the Assembly. My objection to that proposal was that I did not think that certainty should be given to a Bill except by judicial decision: it should not be conferred by a mere decision of the Executive.
These Amendments deal only with a Bill that has been referred to the Judicial Committee of the Privy Council and which has been considered by it and as regards which it has been decided by that judicial body either that it is outwith the legislative competence of the Assembly, in which case it cannot pass into law, or that it is within the legislative competence of the Assembly. If that has been decided by judicial decision, surely it is desirable that there should be certainty so that people know where they stand.
I have very little sympathy for the criminal mentioned by the noble Earl, who, after the Act has been passed knowing that it is on the Statute Book
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and having decided to act contrary to what it provides, would then he able to go and attack theAct. There does not seem to me to be any necessity in ordinary justice for that any more than there would be if it had been decided by the House of Lords, for example, that the particular provision of the Act was valid.
I wish to turn now to the suggestion by my noble and learned friend Lord Hailsham of Saint Marylebone that there should be a limit to the binding character of a pre-enactment decision by the Judicial Committee that an Act was valid. Your Lordships will observe that, under Clause 19, the Secretary of State has a choice as to whether he will refer to the Privy Council either the whole Bill or specific provisions in the Bill. I think that my noble and learned friend Lord Hailsham suggested that, if he referred specific provisions only, then the decision on those specific provisions should be binding, but that, if he referred the Bill as a whole to the Judicial Committee, then it should not be binding as respects points which it appeared were not argued before the Judicial Committee. I should not like to see a qualification of that kind upon the certainty given by the Judicial Committee ruling that the Bill, as a whole, is within the legislative competence of the Assembly.
Your Lordships will remember—I mentioned this yesterday—that, under Clause 18(2), a Bill must be wholly within the legislative competence of the Assembly in order to be passed and to be a vaild Bill. If the Secretary of State, instead of referring those provisions which he thinks doubtful, refers the whole Bill to the Judicial Committee, one would suppose that that would be because he wanted a view upon all the provisions of the Bill. Moreover, it would be the duty of the Privy Council, in determining a reference of the whole Bill, to consider all the clauses of the Bill and to satisfy itself that each of them was intra vires. It seems to me, therefore, that there is sufficient safeguard, having regard to the need for certainty, in the law and sufficient safeguard in the provisions of the Act itself to justify this House, in the interests of certainty, in accepting Amendment No. 91 and rejecting Amendment No. 90.
There is one further matter to which I should like to refer. There is nothing

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strange or unusual in a decision of the Privy Council on an advisory reference—which essentially is what this is—being made final and binding upon all courts. The Government of Ireland Act 1920 contains an express provision to that effect. I think I am right in saying that, in those Dominions—and I think particularly of Canada—where there is express provision for advisory opinions, those advisory opinions in pre-enactment legislation are final and binding upon all courts. I would suggest that we should adopt the same line in this Bill and that it should expressly make questions decided by the Privy Council—which may either be questions upon individual provisions in the Bill or, if the Bill is referred, upon all the provisions of the Bill—final and binding, and not to be questioned after enactment.
4.1 p.m.
Lord FRASER of TULLYBELTON: I am sorry to find myself in disagreement with my noble and learned friend Lord Diplock in this matter. I entirely agree with him as regards the first stage of the argument, that if the Judicial Committee at the pre-enactment stage has decided that a particular provision is infra vires, then there is much to be said for the view that that must be settled once and for all; because it is difficult to see a useful purpose in allowing people to re-open that normally fairly narrow issue.
It seems to me to be an entirely different matter when we come to a reference of a whole Bill, which might be a Bill like this one. Just suppose for one moment that this Bill was referred to the Judicial Committee of the Privy Council. Your Lordships are aware of its complications. Can it be seriously suggested that the fact that the Privy Council has said that it is intra vires can preclude someone later on from pointing to some minor paragraph in one of the Schedules and saying, "This was never mentioned. No one ever thought about this; this is ultra vires"?
I speak with respect and diffidence in this matter, but my understanding of the procedure of the Judicial Committee and of any court is that normally they consider only those issues that are argued before them, and they confine their
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attention to the argument. It is no ordinary part of the duty of a court to comb through the Schedules and outlying parts of a Bill to see whether it cannot rustle up something which counsel has not put before it. If my noble and learned friend is right about this, that may become the duty of the Privy Council, but I hope that I shall not have to do it personally. It is a terrifying prospect.
One must also remember, if I am right about that, that the argument on the question of vires will, as I understand it, be conducted at the pre-enactment stage only by representatives of the United Kingdom Government, on the one hand, and the Scottish Executive on the other. I am open to correction, but I do not think that a private party has any locus to intervene at that stage. A private individual or some trade organisation or group may have a point which they are not able to place before the Government or the Scottish Executive in time, which they think is a good point and which is simply never presented. It seems to me to be a constitutional outrage if, in those circumstances, the individual or the body concerned was prevented afterwards from raising the matter as a devolution issue.
Your Lordships will remember that in Schedule 12 a "devolution issue" means:
"a question—
(a) whether a Scottish Assembly Act or any provision of a Scottish Assembly Act is within the legislative competence of the Assembly".
I cannot see any argument in common sense or in law for preventing someone who thinks that he or she has a devolution issue of the narrower sort, but a good one, from raising it because the Judicial Committee, never having considered this point in the past, has given the Bill a clean bill of health without noticing this point. For that reason I find myself unable to agree with my noble and learned friend. I think it follows that when the time conies I must oppose Amendment No. 91.
4.5 p.m.
Lord DOUGLAS of BARLOCH: This is a very delicately balanced argument and it is difficult to reach a conclusion when we are dealing with something which is totally new. So far as one possibly can, one must try to envisage

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how this will work in practice. The noble and learned Lord, Lord Fraser of Tullybelton, has drawn attention to the first point which deserves consideration. If the question of the intra vires of an Assembly Bill is referred to the Judicial Committee of the Privy Council, what precisely will be referred to it? Is it the validity of the whole Bill, or the validity of some particular provision which the Secretary of State considers may be doubtful.
I cannot really imagine the validity of a whole Bill being referred to the Judicial Committee of the Privy Council. If that happened frequently, the Privy Council would be simply clogged up with work; it would take it possibly years to dissect a Bill to find out whether or not every provision in it was intra vires. I can quite imagine the Privy Council dealing with a specific point referred to it as to whether or not something is infra vires. Even there an interesting question arises as to how that matter will be dealt with before the Privy Council. Is it to be dealt with as though it was a litigious matter in which counsel on one side or another will be heard? If so, on what sides will they be? Who will instruct them? All this seems to demand some consideration.
It is not at all an unusual situation that delegated legislation should be open to challenge in the courts when proceedings are taken. After all, this is a commonplace situation; there is nothing unusual about it. On the face of it, there is no reason why that should not apply to an Act passed by the Scottish Assembly. Indeed, even if the Amendment, which the noble and learned Viscount, Lord Dilhorne, is about to propose, should be carried, that position would still exist because his Amendment deals only with cases in which there has been a reference to the Judicial Committee. But in all other cases it will be perfectly open to the citizen in some legislation which involves an Act passed by the Scottish Assembly to raise the point that the provision is ultra vires. The Amendment of the noble and learned Viscount does not prevent that. I think it is right that it should not prevent it. After all, no one is infallible.
One must remember that there is a great deal of difference in referring an abstract point for consideration by the Judicial Committee and having litigation
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which is concerned with some definite case that has arisen. That is the kind of thing which our courts are engaged in considering day after day. They do not give abstract decisions about points of law; they give decisions about questions which have arisen in an actual dispute between parties, whether civil or criminal. They consider that in the light of the specific facts. However, to consider something in the light of facts which have not arisen and which no one can necessarily foresee is totally different. Therefore, whatever decision this Committee reaches, it should not be one which prevents the question of ultra vires in law being raised in litigation if it has not been the subject of express consideration by the Judicial Committee.
It it has been referred to the Judicial Committee on a specific point, well and good. It may be expedient, at any rate, that any further consideration should be precluded, but if it has not I do not see how you can possibly prevent the courts in the ordinary way from considering such a point if it arises. It is impossible to envisage that every Bill which is passed by the Scottish Assembly is going to be referred holus-bolus to the Judical Committee to say whether the whole thing is intra vires or not. Surely that is quite impossible and would make the whole proceedings ridiculous. Therefore, we come back to the point that, whatever is decided, there will be a field in which the question can be raised in ordinary litigation.
4.11 p.m
Lord WILSON of LANGSIDE: The issues we have been debating are indeed, as the noble Lord said, finely balanced. My tendency would be to support, subject to what may be said in reply, the Amendment proposed by the noble and learned Viscount, Lord Dilhorne. But what this debate and this has been said before but I make no apology for saying it again—has illustrated, if further illustration be needed, is that in this measure, as those who have opposed the measure all along have said, there are many of the ingredients of conflict and of uncertainty; ingredients which are better absent from a constitutional measure.
This was nowhere better illustrated than by the intervention of the noble Lord, Lord

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Shinwell, who raised the spectacle over us of Bleak House and Jarndyce v. Jarndyce. As the evidence in support of this view gathers weight, as it has been I suggest gathering weight ever since the Committee started its proceedings, what occurs to me is that I hope that in due course the Government will be able to satisfy your Lordships, when we resume as a House, that in spite of the conflict and the uncertainty which demonstrably the Bill will bring into government in Scotland, there will be a counterbalancing improvement in the efficiency and effectiveness of government in that country.
Lord WILBERFORCE: I should like to quote briefly to the Committee, if I may, a statement by a former Member of this House and a very great lawyer indeed, Lord McNair, which I think bears closely on this problem. He said:
"Whereas I may have thought that I had adequately examined some particular rule of law, I have constantly found that when I have been confronted with the same rule of law in the course of contributing to a judgment I have been struck by the different appearance that the rule of law may assume when it is being examined for the purpose of its application in practice to a set of ascertained facts. As stated it may sound the quintessence of wisdom, but when you come to apply it many qualifications or modifications are apt to arise in your mind".
That is surely the point in this debate; the reviews, pre-enactment and by the court, are raised on quite different planes. As the noble and learned Lord, Lord McCluskey, explained very well the other day, the pre-enactment review is done by reference to subject matters. You look at the subject matters in the Schedule. If it is within one of the devolved subject matters it is all right. That is how the review is carried out. When you have litigation in the courts the individual puts forward certain sets of facts and says, "This law cannot be applied to me consistently with the powers of a Scottish Assembly". I agree entirely, and I will not elaborate upon it, in view of what was said by my noble and learned friend Lord Fraser of Tullybelton that it would be absolutely wrong to allow a general decision on one plane to interfere with the rights of a citizen on another plane. If it is necessary to achieve certainty in this matter—and many false causes are supported by an appeal to certainty in the law—then I would very much prefer the
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Amendment of the noble Earl, Lord Mansfield, subject perhaps to a little drafting amendment.
One final point which I offer in the spirit of friendly collaboration, which always prevails between lawyers even when they disagree. I would tentatively venture to suggest to the noble and learned Viscount, Lord Dilhorne, and those who support his Amendment, that their Amendment does not achieve what they wish it to achieve by the use of the word "final", which simply means no further appeal. The decisions of the Judicial Committee at present are final. But that does not make them binding on other courts. If they want to do so they should follow the language of the Government of Ireland Act to which appeal was made, and say quite explicitly, "Final and conclusive and binding on all courts". That is a minor matter which I am sure the noble and learned Lords will take into consideration should their Amendment receive favour. I hope that it will not and, if necessary, I shall support the Amendment of the noble Earl, Lord Mansfield.
4.16 p.m.
The LORD CHANCELLOR: I am grateful that the noble and learned Lord, Lord Wilberforce, has just spoken because he has expressed in language more succinct and clear than I would have done exactly my opinion on this matter. In my view the proposition set out in Amendment No. 90 is a true and right proposition, and I venture to agree with the way it was analysed by the noble and learned Lord, Lord Hailsham. In my view, however, while I agree that that is the legal position—and, heaven knows! I do not speak with any total confidence in a matter where there is so much difference of opinion—I do not think it would be helpful to give express statutory expression to the proposition.
I think that the principles which apply now in regard to the decisions of the Privy Council should continue to apply, and where in a post-Assent case a matter arises which is covered by identical reasoning in an earlier decision of the Judicial Committee, that would conclude the matter. But, as has been said, if there is a post-Assent piece of litigation raising different issues where parties

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directly affected were bringing forward their case for a remedy, then in that new situation theeffect of the earlier decision of the Privy Council should be persuasive so far as it goes, but if it does not expressly cover the point raised then it would be open to the court to make its own decision upon the matter. As we know, that case could then take its course again through the hierarchy of the courts, which we have not yet finalised in the Bill. That is the way the matter would proceed.
With respect, I do not think that a pre-Royal Assent decision by the Privy Council is final in respect of issues which may be raised in court in practice in the post-Assent period. I take great comfort from the authority which has been quoted by the noble and learned Lord, Lord Wilberforce, from my old tutor, Lord McNair, upon this matter, and I respectfully agree with it. Accordingly, I hope the noble and learned Viscount, Lord Dilhorne, may feel that this matter should not be pressed to a Division. I will certainly consider again the argument that the strength of the first proposition in Amendment No. 90 should be put beyond a peradventure in statutory form. I doubt whether it would be helpful. Indeed, the bald words,
"… but the decision shall not bind any court which considers that question in the course of any subsequent proceedings"
may mislead, for instance, a magistrates' court to disregard it entirely, denigrate its value and say, "It does not matter tuppence about that; the Act says we can ignore it". It might not, therefore, be helpful if it were put in statutory form, but I think the courts will resolve this matter, without the words, in the way that decisions of the Privy Council have been hitherto dealt with in the courts.
Lord DIPLOCK: Is it the noble and learned Lord's view that the Bill as it stands, without any specific reference to the effect of decisions, has the consequence in law which he suggests as being the desirable one; namely, that where the Privy Council has considered a particular provision and found it all right, that will be binding on other courts, and where it has not done so but has passed the Bill as a whole, it will not? I suggest that that is not the effect of the Bill being silent on this matter.
The LORD CHANCELLOR: I will certainly look at that. I would think that in the event of silence the principles which normally apply would apply.
Lord DIPLOCK: I entirely agree with the noble and learned Lord that in the event of silence, principles which normally apply would apply. That is why I suggest that a specific provision is required in order to make a decision of the Privy Council on a particular section binding on all other courts. It is at present, as the law stands at present, persuasive only. Indeed, as a puisne judge I refused to follow a decision of the Privy Council on a particular point.
The LORD CHANCELLOR: I will certainly look at that and that may give added force to the value of giving statutory expression to a proposition with which I am happy to agree.
Viscount COLVILLE of CULROSS: I am sorry that I did not hear the whole of the debate on this Amendment. My noble and learned friend Lord Hailsham of Saint Marylebone asked—and it would be helpful for those of us who want to go on considering this point—about the procedure for the Privy Council and I do not think the noble and learned Lord dealt with that. We were told yesterday by one of the noble and learned Lords on the Cross-Benches that this has only really happened once under the Government of Ireland Act, and that is right and my noble friend Lord Mansfield referred to it.
Under the Government of Ireland Act somehow or other there was before the Privy Council the Corporation of Belfast. What they were doing there I have no idea, but they seem to have initiated the whole of the reference to the Privy Council, and they were opposed by the then Attorney-General for Northern Ireland. The whole of the argument was about one section of the Finance (Northern Ireland) Act 1934; whether a particular levy had or had not the character of a rate.
That was one very specific point which went to one section of a Northern Ireland Act and it was actually argued by parties. Is that the kind of thing that will happen here? Will there be parties and, if so, who will they be? It seems much more

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likely that a specific issue will be decided on a set of either facts or hypotheses by the Judicial Committee, so that we shall have something which will have a character which might properly be binding if that is done, because it is likely that the Committee will have considered a specific provision.
If, on the other hand, the matter will not be argued or at any rate not argued by people in the position of litigants, it does not necessarily follow that all the points will have been taken. With the greatest respect to the Judicial Committee of the Privy Council, I agree with those who have said that it is very difficult for them of their own motion to think of all the points. This might affect the character of the decisions they make. Therefore, I believe that, when my noble and learned friend asked for some indication of the procedure, he was on a point which was valid to the decision about which of these two Amendments, if either, we should put in the Bill.
4.26 p.m.
Viscount DILHORNE: While giving the noble and learned Lord the Lord Chancellor a little time in which to consider what are the right answers to those questions, I will make some observations on what the Lord Chancellor said, because we are discussing this Amendment with the one which precedes it and the noble Earl, Lord Mansfield, will of course have the last word. The noble Lord, Lord Douglas of Barloch, made an interesting speech which satisfied me that my speech had lacked clarity.
If the noble Lord will look at the Bill, he will see that the Secretary of State, in deciding whether or not to refer, can take one of two courses; either refer the whole Bill or refer a provision or provisions of it. I would say with respect to my noble and learned friend Lord Wilberforce that, on the question of vires, one has only to decide whether the proposal contained in the Assembly Bill falls within the power given to the Assembly by this Bill. It will he a pure question of statutory construction; it will not depend at all on the facts of a particular case and it would be wrong to let the facts of a particular case influence the decision. I recognise that, sometimes if one has to look at a particular problem
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more than once, one's approach may differ the second time over, but it does not depend on facts.
I would say to Lord Douglas that this particular Amendment—he was right about this, as I see it—affects only matters which have been subject to a reference. If a Bill has not been referred or if a provision of a Bill has not been referred, then the post-enactment challenge is in no way affected. The only question here is whether, when there has been a challenge of a reference on particular provisions and there has been a decision of the Judicial Committee on those provisions —I am taking that stage first, the stage with which the noble and learned Lord, Lord Hailsham of Saint Marylebone, dealt--there should be challenge open to an individual as to the validity of those provisions thereafter. I am in entire agreement with the noble Lord, and glad to hear he is in agreement with me, on that proposal.
I also believe that, where there is a reference of the whole Bill by the Lord Advocate or Secretary of State, it may be a difficult task, but it will then be the duty of the Judicial Committee surely to consider the whole Bill. While it may be that one usually expects, and usually rightly expects, every possible question to be raised by counsel, there have been occasions, I seem to remember, where points have suddenly occurred to those listening to the case, and they are raised and dealt with. I believe that, as the Bill stands, it will be the duty of the Judicial Committee, if a Bill is referred, to look at the whole Bill and express an opinion on it. I suggest a statutory duty imposed on the Judicial Committee—the Lord Chancellor may confirm it; I hope he will —where there is a reference of the whole Bill.
Then, if there is a decision on the whole Bill, should it be open to challenge thereafter? I agree with my noble and learned friend Lord Diplock that the answer should be in the negative; but there are here, so it seems to me, three possible stages. The first is to take the course proposed by the noble Earl: and I am inclined to think that there is an advantage in making the position clear. The second is to take the intermediate course of ensuring that the particular issues on which it can be established that

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the Judicial Committee has pronounced are incapable of being raised again in the future in any lower courts. That, I think—I hope I have expressed it correctly—was the view expressed by the noble and learned Lord, Lord Hailsham. The third view—this really covers all the particular issues considered, but it covers the case where the whole Bill has been referred, where the whole Bill has to be looked at by the Judicial Committee—is whether, for that particular Bill, any challenge in the future should be competent.
The Amendment put down in my name and in the name of my noble and learned friend, defective though it may be—it may want some further additions—covers the third possibility. It may not be perfect. If that Amendment is carried, so be it; but if that Amendment were to be tested tonight and were to fall and I am not sure what the answer would be—it would still leave it open for there to be put down at a later stage an Amendment following the middle course, which the noble and learned Lord, Lord Hailsham of Saint Marylebone, supports. I am not at all happy with the answer we have received from the Government on this, because I do not think that it shows much more than a natural reluctance to accept any Amendment to this Bill. If I may in conclusion say this to my noble and learned friend Lord Fraser of Tullybelton, he put before us the horrible picture of the Assembly producing a Bill like this. I hope it never will.
The LORD CHANCELLOR: May I say that the reluctance to accept Amendment No. 91 is not a manifestation of the Government's defence of their sacred Bill. That reluctance was shown in other quarters of your Lordships' Committee wholly immune from any such temptations, if I may say so. With regard to the procedural matter, the Privy Council will of course regulate its own procedure for pre-Assent cases, and I would imagine that in the ordinary course it would possibly hear counsel for the Secretary of State and for the Scottish Assembly, though it would not be right to exclude the possibility of other bodies, like the Edinburgh Corporation, intervening if the Judicial Committee allowed them to be parties. I think we can leave these matters for the Judicial Committee's
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own determination. As to post-Assent procedures before the Privy Council, these are of course set out in detail in Schedule 12 to the Bill.
4.34 p.m.
Lord HARMAR-NICHOLLS: I take it that the noble and learned Lords who have been giving their expert opinions have been trying to persuade us who are laymen in these matters, if it comes to a vote. It is going to be a very difficult job; but one thing has become very clear to me, particularly from the remarks made by the noble and learned Viscount, Lord Dilhorne. In many ways his Amendment looks very logical and very clean, and it is effective. It stops this procedure going on, which is bringing the law into contempt, not only in this country but in many countries, because on occasions it never seems to have an end. I have a lot of sympathy with that part of his argument, and with the cleanliness part of it.
But I would accept his argument only if the statutory right to submit the whole Bill to the Privy Council was removed. If they had the power to submit the whole Bill and the Judicial Committee's decision then affected the whole Bill and stopped it from ever being raised again, then in the light of the arguments which have been put I would not feel happy about that: but if they were precluded from submitting the whole Bill, which would then mean that they could not have a clearance on all matters which may apply later and could submit only sections of it which may be in dispute, then I personally would be very attracted to the point of view put forward by the noble Viscount, Lord Dilhorne. But the submission of the whole Bill, and for that submission to give it an authority which cannot be questioned anywhere, any part of it, ever after, would leave me, I think, rather dissatisfied.
So if it could be altered so that only sections of the Bill which may be in dispute could be submitted, then, I believe, once the Judicial Committee has given its decision, that ought to be binding for all time, in the clean and conclusive way which has already been argued. But not the whole Bill; because, although the noble and learned Viscount, Lord Dilhorne, said that he hoped the Assembly would not submit a Bill as complicated and as long as this, we do not know what the Assembly

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might do. My fears, inherent in all the contributions I have made during this Committee stage, are that I think the Assembly, if it is in certain people's hands, may do all sorts of things which will seem incomprehensible and which would seem very unreal to us today, as we view the matter. But it could be that some Bill as intricate, or nearly as intricate, and as long as this Bill might be given to the Judicial Committee to have this clearance; and, once given, it could never be questioned again. I would not have thought that the Judicial Committee could go into a Bill of any length in the sort of detail and assurance that it ought to have. So if this provision could be amended to the effect that the whole Bill could not be given a clearance but that sections of it could, then I would be convinced and I would personally wish to accept the clear-cut, conclusive decision that the noble Viscount, Lord Dilhorne, has put forward.
The Earl of MANSFIELD: The debate on this particular Amendment has certainly taken longer, and ranged more widely, than I thought it would when I moved it. I am bound to say that when the noble and learned Viscount, Lord Dilhorne, first got up to speak, for a moment I thought that he was talking the utmost sense—of course, he always does; but that his Amendment would in the end prove more enticing (if that is the word) to the Committee than mine. I am bound to say that that was almost reinforced by the noble and learned Lord, Lord Diplock, although he perhaps poured a little cold water on the example which I tried to give of how the individual would have to comport himself according to what happened first of all in the Assembly and later in the Judicial Committee. Because that is really what this matter comes down to, as I tried to illustrate when I moved the Amendment: that the Judicial Committee will be coming to its decisions, or at any rate deliberating, in what I called a vacuum—and I think that was quite a good word to use.
But contrary views, and indeed powerful views, were expressed by my noble and learned friend Lord Hailsham, and, of course, also by the other noble and learned Lords who have taken part in the debate. What I think is perhaps less than satisfactory is the attitude of the Government,
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which seems to say or imply that the status quo is probably the best way to resolve what must be a difficulty. The situation postulated by the noble and learned Lord, Lord Fraser of Tullybelton, is one which I would have thought the noble and learned Lord the Lord Chancellor must take seriously. The Judicial Committee could not, and must not, be allowed to get into the position which he was telling us about, and which it could get into. There is obviously a lot to be considered and thought about on these two Amendments, and, indeed, all the questions which have been raised by Clause 19 of this Bill; and I certainly would not dare, still less wish, to ask the Committee to come to any form of conclusion this evening on the matter. In the circumstances, therefore, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.40 p.m.
DILHORNE DILHORNE moved Amendment No. 91:
Page 8, line 31, at beginning insert ("The decision of the Judicial Committee shall be final and").
The noble and learned Viscount said: I now move this Amendment and I wish to add only a few words to what has already been said in the debate on the previous Amendment. I sense that the feeling of the Committee, in so far as one can sense it, is not for the full length of the Amendment tabled by my noble friend and myself. Also, I feel (I hope not wrongly) that there is considerable support for the view that if a particular question has been raised before the Judicial Committee and decided by it, that should be that and the question should not be capable of being raised again in the courts in the future. I shall endeavour to draft Amendments to give effect to that. I do not think that one can possibly restrict the powers of the Secretary of State and say that he must not refer the whole Bill—the whole Bill may be so short that it is impossible to cut it into small parts—but I think that one could limit the finality of the Judicial Committee's decision to finality on the particular issue decided and leave it open for a challenge to be made in the future on any issue not decided. That seems a reasonable compromise.

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I hope that Her Majesty's Government will give serious consideration to that and, even if they come in the end to a hostile conclusion, they might at least give me some assistance in drafting Amendments which are satisfactory to achieve that purpose—Amendments which will not involve me in getting more criticisms of my drafting. With those observations, I shall be prepared to withdraw the Amendment.
4.42 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: What is really frightening about these discussions is that the House of Commons have allowed this Bill to reach us without ever having discussed one of these questions at all. I think that when we hear irresponsible talk in one quarter or another about the abolition of this House without substituting anything in its place, one ought to take this series of debates as a text for showing how silly such a suggestion really is.
I remain, I must say, on my noble and learned friend's Amendment, in exactly the same position as I was—which, I think, is identical to that of the noble Lord, Lord Fraser of Tullybelton. What I do suggest is that these problems are so difficult that it would be unwise to come to a conclusion today. We have heard a great deal of argumentation, most of it persuasive more or less, from various distinguished legal personages, other than myself; and I think that the noble and learned Lord the Lord Chancellor would like perhaps to go away and think about it, so that if we do not pursue this matter to a Division today I think that we should all feel a little happier. I would make one comment on my noble and learned friend's speech. I was rather on the side of my noble and learned friend Lord Wilberforce in what he said about Lord McNair. I do not think it was disposed of by the criticism which the noble and learned Viscount, Lord Dilhorne, made of the speech.
Of course, these questions are intrinsically questions of law; but I believe that the universal experience both of the Bar and the Bench is this. All legislation by Parliament is prospective. We try to meet situations before they have arisen and always fail—not sometimes but, I think, always. There is always the casus omissus. That is the case which almost
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invariably occurs sooner or later. On the other hand, the other source of law, judicial wisdom, case law, is always retrospective. They cannot come to any decision, even if it is what they call judge-made law—I think, wrongly and misleadingly—until alter a situation has arisen. And all that they do on the day they deliver judgment is to say what happens between two persons in a case which has actually happened, and then some future litigants must work out exactly what relevance their binding precedent has on a future situation.
What I think Lord McNair was saying is something of universal experience to us all. When we sit in the House of Commons or the House of Lords legislating away with the best of good intentions—as, of course, we all do—we try to do our best and we state principles: "There shall be no discrimination between sexes …", "There shall be no discrimination in race, creed or colour …" et cetera. They look fine when you state them and most people accept them. Then you get to the case about the Scottish cook who is wanted to cook porridge and you get all sorts of things which happen. You would think that the officious bystander, as he is called in academic legal parlance, would poke the legislator in the ribs and say: "How about the Scottish cook?" But it never happens. What I think Lord McNair meant was—and what I certainly would agree with if he did—is that when you have seen the thing in the context of a particular set of facts, then the same points of law look somehow different. What seems to be so easy and so obvious and so just, in advance, begins to look something to which you must make exceptions and qualifications.
In this pre-enactment reference, we are putting the Privy Council in the position of deciding in advance what is to be the law. That is the position in which, in ordinary litigation, judges never are. They are really doing the job—although with their particular legal expertise and with the assistance of counsel they no doubt do it very well—which Parliament is doing when it legislates. I would only suggest—arid my noble and learned friend Lord Dilhorne has made reasonable speeches and so I think have been the speeches which differed from his—that the noble and learned Lord the Lord Chancellor would like it (and in any case

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would be well advised) if we postponed further discussion on this whole complex of subjects until the Report stage.
The LORD CHANCELLOR: I should certainly like that. We have had a lot of advice, not all directed to the same conclusion. I should certainly like to consider the matters that have been raised. I hope that I did not appear to be dogmatic about what I was submitting; but I am grateful for the assistance of noble and learned Lords and for that which my noble and learned friend gave in his brief intervention. I am glad that the matters are not now being put to a vote. I certainly will give very careful consideration to what has been said before the matter comes back again for the Government view to be stated.
Amendment, by leave, withdrawn.
[Amendments Nos. 245, 246, 93, 94 and 247 not moved.]
On Question, Whether Clause 19 shall be agreed to?
4.49 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: May I say only two or three sentences to the noble and learned Lord the Lord Chancellor. This has been a very complex clause, involving a great deal of discussion. I think that some of the different Amendments, at first sight divergent from one another, really turn round a point which we reached fairly early on in the discussion of the Amendments on this clause, that is, the criteria for reference. The noble and learned Lord has promised to look at it again. May I emphasise what I think is the point.
As matters stand, the Secretary of State in principle is bound to refer only when he has come to a positive conclusion adverse either to the Assembly Bill in question or to a particular provision to be referred. I believe that that is wrong. I think there is overwhelming opinion on all sides, differing, as we do, about almost every other point, that that is, in fact, too severe and that if there is a substantial case to be tried, and that case is identifiable and seen in advance, the Judicial Committee ought to pronounce on it, and to do so in advance.
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If one takes what was discussed last night, the question of the European Community problem, the whole discussion would have taken on quite a different complexion if the criteria for reference had been different and if the Secretary of State instead of having a purely Executive function, had been able to make a reference to the Privy Council about the Community obligations for judicial decision in advance, on the basis not of his fixed opinion, his concluded opinion, but on the basis of a substantial case to be argued. I just wanted to say that, and that is all I want to say on this Motion.
4.50 p.m.
Lord GLENKINGLAS: May I add one very short point in support of what my noble and learned friend has said. Having very little knowledge of the law, but having been in a position where I was continually having to be advised by Lord Advocates and others, what I found extremely difficult was that, if one asked a legal opinion, one received it from the Lord Advocate; then, when one came down to Whitehall, one was almost always met with the argument from either the Solicitor-General or the Attorney-General that the Lord Advocate did not know what he was talking about. That was common form. I daresay it still occasionally goes on.
I feel very strongly that what my noble friend has said is right and that one makes the position of the Secretary of State very difficult under the terms of this particular clause. If there is serious doubt even between him and his own Lord Advocate —let alone between the Lord Advocate and the Attorney-General—the Secretary of State ought to be able to refer the matter in order to get a sensible view—as I am sure would happen—from the Privy Council Judicial Committee.
Viscount DILHORNE: I must rise to my feet after that unwarranted attack. I think that at the time to which the noble Lord referred I held the office of Attorney-General. We always did our best to hold the hand of the Lord Advocate, and often had to do it. I think I remember that it was once at the insistence of the noble Lord. There was insistence that there should be a joint opinion of all four Law Officers: the

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Attorney-General, the Solicitor-General for England, the Lord Advocate and the Solicitor-General for Scotland. It was disastrous! The English Law Officers wrote their opinion in a matter of days. I think it was six months or more before we could get an opinion out of the Lord Advocate. And I am attacked by a former Secretary of State for failing to co-operate! It is monstrous!
Lord GLENKINGLAS: If I may quickly reply, I did not in any way imply that the noble and learned Viscount was wrong, I merely said that there was always a difference of opinion.
The LORD CHANCELLOR: I hesitate to intervene in this fraternal strife. I am happy to say that I do not think I had any such difficulties with the Lord Advocate in my time as Attorney-General. We have had a valuable discussion on the criteria for reference on the basis of an Amendment moved by the noble and learned Viscount, Lord Dilhorne. Of course it is a matter which is open and will be further considered.
Clausee 19 agreed to.
Clause 20 [The Scottish Executive]:
4.53 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 95:
Page 8, line 36, after ("others") insert ("numbering not more than seven").
The noble Lord said: We now turn, perhaps with mixed feelings, away from the strictly judicial and legal aspects of the Bill, to the Executive functions and subordinate legislation. The first line of the clause says:
"There shall be a Scottish Executive".
Then it goes on:
"one of whose members shall he known as the first Secretary and the others as Secretaries of the Scottish Executive".
It may be thought presumptuous on my part to propose what the maximum number of Scottish Ministers—if one might call them that because it is rather easier than to talk about Scottish Secretaries — should be. But if there is to be a maximum, it seems to me that it will have to be determined in the Bill.
1198
I confess that when I put this Amendment down, I thought that there was still a maximum laid down in the legislation for Ministers of the Crown, as I believe there once was. Since then, I have looked up the Ministers of the Crown Act 1975 and the Ministerial and Other Salaries Act 1975, and I can find no reference to a maximum number of Ministers, only reference to maximum salaries. Perhaps I should have looked further elsewhere; I do not know. But it seems to be left to the Prime Minister to decide who should receive the maximum salaries, and that depends on how many Ministers he wants to have in the Cabinet. That is a variant.
Here we are to decide simply that there is to be a First Secretary and other Secretaries of the Scottish Executive. Equally, I might add, there is a range of salaries prescribed in the United Kingdom legislation for Ministers not in the Cabinet, and some of them seem quite inadequate. I am glad to see that the noble and learned Lord agrees. But the position of Scottish Secretaries is not the same. Their salaries are paid from the Scottish Consolidated Fund which is financed by Parliament. If the Exchequer is to pay, Parliament in my view should have a say. Parliament will have little or no say, as I read the Bill, unless the maximum number of Ministers is laid down in the Bill. It might be that a global sum was determined in the estimates for the Scottish Assembly, I do not know. I am sure there will be little say for Parliament as to what the number of Secretaries should be, unless it is laid down in the Bill.
I would not presume to ask the Government to accept the maximum that I have proposed, but the purpose of this Amendment is to ensure that there is a maximum laid down in the Bill. I have put down a figure which can readily be altered at a later stage in the Bill. I am proposing seven Scottish Secretaries, and that is based very largely on what happens just now and what is envisaged in the Bill. One has to remember all the time of course that the functions of the Scottish Secretaries will in total be fewer than the total functions of the Secretaries of State with the present Ministers of State, the Lord Advocate, the Solicitor-General and Parliamentary Under-Secretaries of State.

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At the present time, it looks as if the subjects to be covered will be these: first, there will be the First Secretary, presumably with his own Central Department. Secondly, there will be the Lord Advocate. That leaves room in the seven for five other Secretaries corresponding with the present number of Departments of the Scottish Office. The first of these, in alphabetical order, is Agriculture and Fisheries, most of whose functions will remain with the Secretary of State and not be transferred to the devolved administration. Then there is Home and Health, Education, Development and Economic Planning. Development and Economic Planning are very wide Departments. Perhaps if I may remind the Committee, development covers housing, roads, rates, local government, planning, rents, public road and water transport; and economic planning also covers a wealth of subjects. Perhaps it is a little more descriptive, the main thing being economic and industrial development, regional aid, grants and so on.
There is of course the question of a Chief Whip, and whether he should be a Scottish Secretary or an assistant to the First Secretary it is not for me to say. The Chief Whip is in a sense the adjutant to the outfit. The First Secretary, as I have said, will no doubt have his own Social Services Department and might quite well assume one of the portfolios. I recognise that the Development and Economic Planning Departments might be divided up. The Home and Health Department might also be separate. However, there are to be the assistants. Scottish junior Ministers at the present time are accustomed to handling a heterogeneous basket of subjects, and no doubt Scottish secretaries will do so too. I have no doubt they will be able to delegate some of them to what the Bill calls, "assistants"—it sound rather hospital-like to me, and I hope they will be dignified with a better name in current parlance than that.
If one adds up the First Secretary and his six colleagues and the assistants, including the Chief Whip and his or her assistants, one might well find that they amount to well over a score. That seems quite a sizeable number. I do not think that a much larger number of Ministers
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and assistants in the Scottish Executive can be justified merely on the grounds that the Assembly is to have twice the number of Members as there are Members of Parliament from Scotland. I hope the Minister will not say that the number of Secretaries and assistants is entirely a matter for the First Secretary. If the Scottish Assembly were raising its own finance, that might be a tolerable answer. What the Committee is entitled to know is what is to be the size of the Executive in the view of the Government, because it is on the Executive that the success of this Bill will depend to a large extent.
Perhaps I might ask one last question, so that we can see what the shape of the Executive, and its status, is to be. In the course of my researches, I was reminded that the Secretary of State is a corporation sole. I do not know whether there are such things in Scotland, and that may be why there is no such reference. But there must be something corresponding to that. What I want to know is whether the First Secretary is going to be in the position of a Secretary of State or whether it is to be the Scottish Executive as a whole which is to be in that position. I see that various Scottish Secretaries can do a great variety of things that Ministers in England and Secretaries of State can do, so far as sales of property, entering into contracts, and so on, is concerned. I do not know the answer to the problem but I think it would help, in discussing this Bill, to know what the status of the Scottish Executive, of the First Secretary and of the various other Secretaries is to be. I beg to move.
5.3 p.m.
Lord MACKIE of BENSHIE: I am astonished that the noble Lord, Lord Drumalbyn, with whom I have been so much in agreement over so much of the discussion on the Bill so far, should have put down this Amendment in this form. I realise he is probing the intentions, but when he says that because the Assembly does not raise its own money Parliament should lay down how many Secretaries or Assistant Secretaries there should be, I think he is quite wrong.
One of the points that arose out of negotiations and discussion on the formula for the block grant was that it should be

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laid down not on a basis of annual negotiation but on a basis of some formula of proportion which was agreed and laid down for four years in order to substitute for the reponsibility of the Assembly raising its own money. Therefore the responsibility of having a block grant should make them very conscious of the fact that they could not go pleading or screaming, or whatever you care to call it, to the Treasury every year, making cases for specific objects. In my view and in the view of my colleagues on these Benches, there is no doubt that this gave an added responsibility which was really in place of taxation powers, which would make them unpopular, which the Government could not see a method of granting in a practical way, although they have stated that they will look at any suggestion put to them in the future. I personally do not think this is a bad thing. I think the Assembly will have so much to do and so much experience to gain during the first four years that it certainly can do without introducing a taxation system at that time.
I hope the Scottish Assembly will not follow slavishly the pattern of the British Cabinet and the elevation of Ministers to comparatively large salaries and status. It should surely be possible, out of an Assembly of 150, to nominate Secretaries and Assistant Secretaries to do various jobs without making it any more expensive. We have a lot of particular problems in Scotland which need not follow the pattern of the present split-up of jobs within the Secretary of State's Department. For example, agriculture and fisheries have always gone together, but in Scotland, particularly with our development problems in the hills, the Highlands and the uplands, there is no doubt in my mind that agriculture and forestry should go together to a large extent, in spite of the grudging devolvement of powers so far envisaged in this Bill. Therefore I think it is a matter for the Scottish Assembly and I think they must be left to do this themselves, because it is a question of responsibility. If they cannot do this, then I do not think they would be capable of governing Scotland—and I sincerely think that they can.
Lord HARMAR-NICHOLLS: I did not think that this Amendment was really anything to do with block grants, but the noble Lord, Lord Mackie, who is an
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expert tactician on these matters, was emphasising a point which would not be much in dispute in order to overlook the very clear point made by my noble friend: that is, that there ought to be some restriction on the numbers that will be given office. He has put in his Amendment the figure of seven, but he said he did not hold himself to that and he wanted to get the principle of the number being there. At a later stage, I have no doubt all the considerations will be taken into account as to what is a reasonable number. I should like to support my noble friend in wanting to have this spelled out to that extent and, if it is agreeable to noble Lords who are interested in this, perhaps I might also put my arguments on Amendments Nos. 307 and 316 on page 20 of the Marshalled List. I think the arguments could run alongside this, because my noble friend is wanting to establish who shall have the authority and the power; and my Amendments run alongside that and ask what power and authority should they have.
I approached this clause very much House of Commons orientated. I believe that we have to be very careful that in the process of wanting to be generous to the new Scottish Assembly we are not undermining the authority and standing of the Westminster Parliament. My two Amendments, added to my noble friend's Amendment, would try to make certain that we do not allow the residual rights and powers of the Members of Parliament to be usurped by the Members of the Assembly or the officers of that Assembly—
Lord DRUMALBYN: I am so sorry to interrupt my noble friend, but one of the disadvantages of the new system of numbering is that it is rather difficult to find out where a particular Amendment is, particularly with the higher numbers.
Lord HARMAR-NICHOLLS: Page 20 of the third revised List is where the second Amendment is.
Lord DRUMALBYN: I am much obliged.
Lord HARMAR-NICHOLLS: That is very much of a long shot, as I shall perhaps be able to show in a minute, but I feel that if these Amendments are not accepted something like them ought to he

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introduced, so that we do not take away from the Members of the Westminster Parliament the powers and the general status and standing they have already got.
Lord McCLUSKEY: Purely on a technical point, I am not sure that we are sharing the same list as the noble Lord who is speaking, because on page 20 of my revised Third Marshalled List there is an Amendment by the noble Lord, Lord Harmar-Nicholls, about the determination of British foreign policy.
Lord HARMAR-NICHOLLS: That is the one. It seems very remote and rather alarming, and that is why I wanted to explain how it fits in.
Lord McCLUSKEY: It is just that I do not share the noble Lord's creative imagination.
Lord HARMAR-NICHOLLS: The noble and learned Lord may be rather sorry that he said that, because in order to support that point I must quote at length one of his right honourable friends, on whose support he has relied in the past and will in the future. They profess to agree with one another. It will be his argument, not mine. But, in all seriousness, I say that in our enthusiasm to maintain the good relations that we must have with the Scottish Office and with the new Scottish Assembly, if ever it comes into being, we must be very careful that we are not interfering with the powers, standing and status of the Scottish Members who are sent to Westminster. There is a very real risk.
My authority for saying that is that for something like 15 years I sat as a member of a local authority, and I remember how jealous one was when matters to do with the local authority were taken up, with the best intentions in the world, by the local Member of Parliament. The local authority councillor wondered: "Why is this chap muscling in on matters which concern us, and which we can sort out?" One understands the jealousy and the misunderstanding that have arisen in another place, when somebody has raised a matter which has to do with someone else's constituency—"Why is he dealing with that matter? It is my constituency. I am an eager and willing Member who is
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prepared to do my work". If we allow to go on the Statute Book an Act which seems to allow the power, which has previously been enjoyed by Scottish Members of Parliament at Westminster, to be taken up by the Assembly, we may be creating that sense of conflict to which I keep returning, because it is a very real fear of mine.
My fear was reinforced by statements which are on the record made by, for example, the Lord President of the Council, who said recently that he could see that Brussels would be contacting the Scottish Assembly direct about all the problems that will be met and, I hope, solved between the United Kingdom and its partners in the Common Market. If the people at Brussels are to be able to make contact with the Members of the Scottish Assembly, and in that way by-pass the Westminster Members of Parliament, who have always been very jealous of their powers and rights in this respect, the position could be very difficult indeed.
Lord MACKIE of BENSHIE: How does the noble Lord think that he can have his cake and eat it? If you are to devolve power, you must give some power away. You cannot have it both ways.
Lord DRUMALBYN: I wonder whether my noble friend would mind my pointing out that his own Amendment No. 307, and indeed Amendment No. 316, seem to be rather a long way from the number of Scottish Secretaries. I think that it might confuse the debate very considerably on that subject, if his own very interesting points were to be followed too far. Would he, on reflection, like to reserve that for a separate discussion?
Lord McCLUSKEY: May I add my voice to that, with the permission of the Committee, because they are so far away that they are being dealt with by different Ministers. We see very little relationship between Amendments Nos. 95 and 307 and, still less, No. 316.
Lord HARMAR-NICHOLLS: I think that they run together. Here is suggested the numbers that have the power, and I am saying that while we are settling numbers we ought to settle what powers

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they should have. But if it is more convenient to do it the other way, then I shall be quite happy. I thought that I would also be saving your Lordships' time by putting the argument alongside the Amendment, because I do not intend to push the Amendment to a vote, and I gather that my noble friend will not do so either. I have gone three-quarters of the way, but if that is the wish of the noble and learned Lord I do not mind. I think that my noble friend is right. I believe that a number has to be put in, whether it be 7, 9, 11 or whatever we decide. I think that a number ought to be there.
Lord GLENKINGLAS: I feel very strongly that we should have a number in, but I do not feel nearly so strongly about the exact figure. However, there is always a tremendous temptation—and I am not in the least worried about the cost now, because I do not think that that is part of our discussion—whenever a new organisation is set up, whether a new State, a regional authority or whatever it may be, to want the largest possible number of people, because that makes everyone feel grander. I agree with the noble Lord, Lord Mackie of Benshie, that it will take four or five years for the Assembly to settle down, and see what it really wants and how many people it needs. But it is extraordinarily difficult, if you have started with, perhaps, 10 Secretaries, to say at the end of four years that 10 were totally unnecessary and they are all grossly underworked, so you will go down to five or six. Therefore, there is a very sensible argument for putting in a reasonable number, and I do not think that seven is far wrong as the number of secretaries who will be needed.
However much one tries to equate the kind of work that those Secretaries will have to do, with the work of the Parliamentary Under-Secretaries in various Ministries, particularly the Under-Secretaries in Scotland, whom one knows much better, one thing they will certainly avoid is the extremely tiring travelling up and down between London and Edinburgh, which, when matters are serious, can often be twice a week. All that strain will certainly be taken off them. They will also be able much more easily to be in touch with their own
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advisers and constituents, if"constituents" is the right word.
I have no doubt at all that, whereas in my experience in the Scottish Office the Under-Secretaries were the hardest working of all, compared with the Under-Secretaries in the Ministries in Whitehall, these Secretaries will not be in that category. As the noble Lord, Lord Mackie, said, for specific Scottish interests, such as tourism and forestry, there may be extra work to do, because the Assembly feels that a subject is very important for the future of the country which it envisages. Having said that, I hope your Lordships will agree, either now or at some later stage of the Bill, that a number ought to be written in, in order to avoid the very natural desire of all new institutions, to which I have referred, to set themselves up in the best possible way, followed by the very natural difficulty when they find that they have overdone it and have to cut down again.
5.19 p.m.
Baroness ELLIOT of HARWOOD: My experience of the results of reorganisation of local government, certainly in the area in which I served for a number of years, is that when they cut down—which they did—the numbers in the counties and became a region, they cut them down too much. There were too few people. What happens now is that four counties have to provide for one region. The committees are tiny, because there are only 24 people in the whole region. The distances which people travel are great, and the difficulties in the winter are sometimes quite considerable. A committee may be supposed to have seven people on it, which is not at all large, and if three cannot turn up it leaves only four. That means that an enormous amount of responsibility is carried by the officials. I am all in favour of officials. They are extremely important and we all hope that they will be as good as possible. However, at the end of the day it is the elected members who have to shoulder the responsibility.
I think that this group could be too small. There is something to be said for having a group which is large enough to be able to spread its interests all over Scotland. And if it is to spread its interests, it will have to obtain people

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from a widespread area. We should make quite sure that we are not cutting the numbers down too much, in which case concentrated responsibility will be put into the hands of too few people. They will be in charge of working out policy, and the result will be that they will not obtain widespread support. We are often told—and it is quite true—that the number of officials in the Scottish Office today is twice or three times what it was in the 1930s when my husband was Secretary of State for Scotland.
Lord DRUMALBYN: I am not altogether certain that we are speaking about the same point. My Amendment deals solely with the First Secretary and the Secretaries of the Scottish Executive. It does not deal with the number of assistants that there should be. This is a question of dividing up portfolios and of deciding on the number of people who will be required to handle the subject matters which are to be dealt with by the Scottish Executive.
Baroness ELLIOT of HARWOOD: I am grateful to the noble Lord, Lord Drumalbyn, for his remarks, because I had understood that in moving his Amendment he was hoping that there would be a very small number of people who would shoulder a great deal of responsibility. If they are to have deputies, or whatever they may be called in the official jargon of the new Assembly, the situation will be slightly different. However, my experience of the reorganisation of local government is that too few people have to shoulder an enormous amount of responsibility. The burden is not spread widely enough. If my point does not apply, I apologise. However, having listened to the debate it seemed to me that there was a danger that we were trying to make the group too small, in which case it would become too concentrated, and then we should lose the interest of other people.
The Earl of LAUDERDALE: Whatever may be the right number is surely a matter for further consideration. We have heard the argument of my noble friend Lady Elliot of Harwood against the number being too small. We have also heard other arguments against the number being too large. I hope, however, that the Government will look at the matter with a
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fairly open mind. We were assured this afternoon, in the customary silky, sublime way which we expect from the noble and learned Lord the Lord Chancellor, that the Government have an open mind all the while. I hope we shall see some evidence of that open mind in regard to the Government's attitude to this matter.
If in the United Kingdom Parliament it is necessary to come to Parliament for authority when an extra Secretariat of State is set up, there will be no derogation of the status of the Scottish Convention if the Executive there, too, must seek authority for expanding the Executive beyond a particular size. We are assuming, we must assume and we shall assume, that for the most part Members of the Scottish Convention will be responsible, sensible people who put great store by serving their country well. However, from our experience of Parliamentary matters we all know that there are also others who may have different purposes at heart.
When we write restrictions or limitations into the Bill, surely we are doing so to strengthen the hands of the good people, the reliable people, the solid people, the responsible people. If we give protection to them at various points, our purpose will be not to derogate the status or dignity of either the Convention or its Executive but to strengthen the hand of those who are reasonable and responsible. From that point of view, surely the Government ought to be willing to look with some sympathy at this Amendment and perhaps undertake to consider it between now and Report.
I do not think that my noble friend Lord Drumalbyn and I and other noble Lords, including the noble Lord, Lord Glenkinglas, are saying that the number should be five, or seven or nine. We are saying that there is a case for writing a limit into the Bill which will be a help and not a hindrance to those in Scotland whose approach to the whole matter is responsible, and also a disincentive to those who may be more tempted to seek to extend the role of patronage.
I hope that the Government will be as open minded about this question as the noble and learned Lord the Lord Chancellor, who I see is now back in his place, promised that they would be in what I described earlier, and I repeat it

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for his benefit, as his splendidly silky and persuasive manner, which we always enjoy when we hear it.
5.26 p.m.
The Earl of PERTH: Since it gives numbers, I am not entirely sure that I am happy about this Amendment. The first question that I should like to ask is this: If a number is inserted, what is to happen if, let us suppose, in one, two or five years' time it is quite clear that the stated maximum number is wrong? What, then, will be the procedure which has to be followed? I suspect that the procedure will be rather clumsy: that the point will have to go back to both Houses of Parliament for approval, where it could be the subject of considerable conflict. I should like to have advice on that point.
The second point which occurs to me is this: If we are to have a number, what should that number be? The noble Lord, Lord Drumalbyn, has told us that today in the Scottish Office Ministers or Under-Secretaries cover a heterogeneous field of activities. I wonder whether some of the discontent about the functioning of the Scottish Office—which, as we all know, is one of the reasons why we have before us a devolution Bill—is because Ministers, or Parliamentary Under-Secretaries, or whoever they may be, have to cover such a heterogeneous field.
When we look at Schedule 10 we find the groups of devolved matters which are to be within the competence of the Assembly or the Scottish Executive. We find also that no fewer than 26 groups will be covering the devolved matters which are to be dealt with by the Assembly or the Scottish Executive. I recognise that quite a few of those groups are properly linked together, but several of them stand on their own. Therefore, I should be nervous if there were to be too small a figure—if there is to be a figure at all. As I gather that this matter is to be considered in another Amendment, having made the point in that general way, may I leave it at that.
The Earl of KINTORE: I have just completed a stint in regional government. There we met exactly the same problem inasmuch as we had no vice-conveners of committees, departments and so on. We found that the limitation was excellent but that it was unworkable. Therefore we
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created vice-conveners—and sometimes two of them. I fully appreciate the problem of having to come back to Parliament. In the first instance, however, the problem of numbers should be kept to a minimum because it will be at least four or five years before anybody knows how the system will work. Exactly the same problem has arisen in regional government; they are only just beginning to find out about it now.
5.30 p.m.
Lord HUGHES: On the face of it, the Amendment put forward by the noble Lord, Lord Drumalbyn, is not unreasonable. If we look at the lists, it is possible to work out groupings in which the work could be carried out reasonably by seven Secretaries; hut, equally, it is reasonable to work out groupings which would require eight, nine or 10 Secretaries. If you insert a number in the Bill it would he disastrous if you put in a number which proved right from the outset to be too low.
Therefore, the tendency, if we want to be absolutely certain that the thing is workable, will be to put in a figure which would be certain to cover any possible list of alternative ways of doing the job. But, as soon as you put in a number, the inclination will be to accept that, because, when you say to people "not more than", they will say "Oh yes, but look—they have contemplated that number". The maximum that you put in to cover all contingencies is therefore much more likely to be accepted, whereas, if no numbers were included, it would not surprise me in the slightest, if the figure which the noble Lord, Lord Drumalbyn, has hit on proved to be very near the mark.
However, I have a second objection to a number being inserted. If it proves to be adequate and there has to be an adjustment, does it mean that there will have to be another Act of Parliament in order to alter the number or is it the case that the Assembly could pass a Bill amending its own numbers? Can it by a subsequent Act amend the Scotland Bill as regards something which relates to its devolved functions? Either way, it seems to me to be an undesirable situation and I think that the best way is to leave the Bill as it stands. After all, Parliament is reserving its rights in so many ways that there is nothing to hinder Parliament, if it found

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in five or six years' time that the Assembly was being totally unreasonable in the number of its Ministers, in acting then. For these reasons, I think it would be a mistake to insert any number at the present time.
5.32 p.m.
Baroness STEDMAN: We have had a long debate on this Amendment and the differences of opinion expressed show the need for flexibility in the number of Secretaries to be appointed. The whole underlying principle of this Bill is that it should provide explicitly an essential framework for devolution in its constitutional provisions, but that it is both unwise and unnecessary to add all the detailed provision for matters on which the Assembly and the Executive may be expected themselves to develop sensible and sufficiently flexible conventions and practices. I think there would be unwelcome and unjustified rigidities if we tried to impose numbers on the Secretary of State within the Bill itself. They could be found to be unduly restrictive and, as my noble friend Lord Hughes has said, if you give a number, then organisations, whatever they may be, tend to appoint up to that number whether they are necessary or not.
If the Amendment were to be carried and the number was not the right number for it, it could not easily or quickly be altered to allow for additional numbers, even if the changes were seen by all concerned to be reasonable and desirable. At best, they could prove to be irritants and at the worst they might tempt the Scottish administration and the Assembly to seek early changes in the provisions of the Act. I should have thought that both those situations were ones that we want to avoid.
The November 1975 White Paper said that a maximum number of executive members and of members and assistants combined would be laid down in the Act. But we had a lot of comments on that White Paper and, in the light of those comments, the Government decided that it was not possible to reach a view on what might be the most desirable size of a Scottish Executive, or how this might change to meet the different policy needs and circumstances which would
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arise from time to time. Can we be sure, if we accept the number of eight at this stage, that that is the right number, or would it be nine or seven or ten? In all the circumstances, who are we to say, without knowing how the Scottish Assembly is going to organise its affairs, what would be the right number? There are limitations on the number of Ministerial offices and these were set in the light of the experience of the needs and workings of the Executive here at Westminster. But similar judgments cannot be made for a Scottish administration.
To seek to limit the possible size of the Executive cannot really be in keeping with the wide and important range of responsibilities which this Bill—and subsequently the Scottish Assembly—will give to the Scottish Executive. If Parliament is to entrust the Executive with these responsibilities how can it be possible to justify not allowing them discretion on the size of the Executive itself? If the fear is that a First Secretary might unjustifiably decide upon an Executive of a wholly unreasonable size, it should be remembered that he would be subject to the views of his Party, the Assembly as a whole and, finally, of the Scottish electorate. It is against this background that the First Secretary will make his decisions about appointments. In doing so he (or she) will be exercising a proper responsibility for which he will be accountable.
If the fear is that a too large Executive would impose unnecessary costs for salaries, it must be remembered that the Bill proposes, in Clause 31, that the Assembly is to determine the salaries of Scottish Secretaries. Surely this is another check which is appropriate. The Amendment, if agreed, would be widely viewed as an apron string fashioned by Parliament in Westminster, distrustful of the ability of a First Secretary (nominated by an Assembly elected by the Scottish people and always subject to the democratic restraints upon him) to act reasonably and with common sense. This would not be a good start to devolution in the Scottish Assembly.
On the detailed points about which the noble Lord, Lord Drumalbyn, asked, the Executive has no corporate identity as such and each Secretary "is interchangeable with each other". This results

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from Clause 20(2). Also, the Assembly need not slavishly follow the Westminster pattern of government. It might be that Scottish Secretaries would be given special new responsibilities in relation to some form of committees of a kind which we do not even have in Westminster—committees that are available to it under Clause 26.
The noble Earl, Lord Perth, suggested that if we wrote the number into the Bill we might be laying up trouble for ourselves. If we did, and if the number was too small, then the Bill would certainly need to be amended in the future, and I think that we should leave that sort of flexibility to the Assembly so that it does not have to come back to the Westminster Parliament for an amendment. The noble Earl, Lord Kintore, has intimated the limitations in regional government which they found not workable in the end and, if we are going to try to limit the Executive at this stage, we shall be in the same sort of difficulty. The Government really feel that this is a case for flexibility to be left to the good sense and the common sense of the Scottish Assembly.
Lord HARMAR-NICHOLLS: I think a comment should be made on that. The noble Baroness is suggesting that we should not put any boundaries in any Parliamentary Act, otherwise the people who are subject to the boundaries may feel insulted. That is not the way to put legislation on to the Statute Book. Our function is not expecting or wanting trouble but anticipating certain troubles that may erupt, and if certain people gain control of the Assembly in Scotland, from their past reputation trouble is certain. It is because there is a possibility of that that Parliament has the duty to put boundaries to limit the amount of trouble that can erupt.
With regard to the point raised by the noble Earl, Lord Perth—that if the figure decided upon proves to be too small, what would be the problem in raising it?— I would venture to suggest that there would be less trouble to give them extra numbers if the figure was found to be too small than to reduce the numbers if experience showed that the figure was too large. So if it is the desire to err on the side of safety while avoiding trouble, I would rather build up from a low figure in the light of experience than attempt to pull down from
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too big a figure. That is where the conflict would arise. I think the noble Baroness is on very weak ground in adducing the argument that someone may feel insulted if Parliament is doing its duty in trying to anticipate possible trouble and to put boundaries to stop the situation from getting too wide.
Baroness STEDMAN: I am not suggesting that they would feel insulted. If that is the impression the noble Lord got he misunderstands me. If we have a properly democratically elected Scottish Assembly surely we have sufficient faith in them to do the job which has been devolved to them and to allow them the flexibility to decide how many Secretaries they need to do that job properly and well and within their competence.
5.40 p.m.
Lord CAMPBELL of CROY: By moving this Amendment in a probing fashion my noble friend Lord Drumalbyn has enabled us to discuss the whole question of whether what seems like a blank cheque should be given to the Assembly and its Executive to decide on numbers and later on on staff. Whether or not there should be a figure in this part of the Bill—and my noble friend himself pointed out that he was putting in a figure of seven only as an example—or whether it should be controlled on the salary side, I feel that there ought to be some way of keeping the size of the Executive within bounds. As the noble Baroness has agreed, this is so where the Westminster Parliament is concerned. She was not able—and I quite understand this at short notice—to reply to the precise question which my noble friend put as regards the latest state of the Minister for the Crown legislation, but certainly both in my capacity as a Minister, and before that as an official in the Cabinet Office (Private Secretary to the Secretary of the Cabinet) I remember having to do this jigsaw puzzle which this Minister of the Crown legislation stipulated, which is the number of Ministers and Under-Secretaries there could be and the distribution between your Lordships' I-louse and another place.
This was laid down. I know it has been relaxed. Prime Ministers have come to Parliament in recent years and asked for the number to be increased, and as my

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noble friend has said, it may be that it is now controlled by salaries. We read in the Press that at least one Minister in the last four years has been on strength but not paid a salary because it is not covered by the legislation. So without going into further detail it is certainly clear that the size of the Executive in the Westminster Parliament is controlled. That is satisfactory from the taxpayers' and many other points of view, including patronage and the Executive getting to be out of hand.
The number of Ministers at the Scottish Office in recent years has varied between five and seven. Under Conservative Governments there have normally been five, including the Secretary of State. Labour Governments have had six, and I think there has been a moment or two when they have gone to seven, but certainly they have not exceeded seven. In addition to that there have been two Law Officers for Scotland. They have been involved in a wider area than this Bill is transferring to the Assembly. They have covered a larger area of subjects.
My noble friend Lord Glenkinglas, speaking from his experience of empire building, has indicated that that can happen, particularly when new bodies are set up, and the noble Lord, Lord Mackie of Benshie, at Question Time today referred to the way in which the reform of local government had apparently caused larger staffs to accumulate than had been expected. That is something that I was quite close to. The reform of local government went through Parliament while I was Secretary of State for Scotland, and I made as careful plans as I possibly could so that when these new bodies came into existence their powers of empire building would be limited and they would not be able to appoint great numbers. But, of course, there was a change of Government rather earlier than was expected, so by the time that the new bodies were accumulating staff I was not in a position to do anything about it.
There are some—and I am one of them—who consider that the staffs of some of the regional councils are bigger than they need have been. In the Bill which went through Parliament we provided for a staff commission in order to look after local government officials who were going
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to become redundant, although not as many became redundant as was expected. I am not criticising the present Government which had just come into office, because I recognise they were probably busy with the important priorities of Manifesto policies and so on. I am afraid that in the meantime the new form of local government did do some empire building. I give that as an illustration because I agree with both noble Lords that when a new body is set up there is a danger of it deciding that it is going to have a large staff because it thinks it is going to have a lot to do and, of course, because there is an element of prestige in this.
So I think there is cause to have some control over the size of the Executive. The First Secretary is nominated—he probably will be nominated and there is provision for that—and appointed by the Secretary of State. The other Secretaries are appointed by the Secretary of State but on the advice of the First Secretary. Those are the ones which my noble friend seeks to limit in numbers. There could be a situation where the First Secretary, perhaps following the idea that the noble Earl, Lord Perth, put to us, would recommend that about 15 or 20 he appointed because he thinks there ought to he a large number responsible for many different subjects. That would be a quite different system from the Scottish Office system at the moment where five or six Ministers cover a wider area of ground.
The noble Baroness mentioned that there might be a committee system, which could also lead to greater numbers. If that were to happen I think there ought to be some control through salaries. If there is going to be a system where there will be more people in the Executive, each covering fewer subjects, that could be a possible new way of forming an Executive provided they are controlled by salary, with those covering less getting a smaller salary then someone would be expecting who was covering much greater ground. That is a possible way of keeping control.
I think the point raised by my noble friend is important, and I do not think we can just leave it to the Assembly and the Executive to decide this themselves, particularly for the first body. As I pointed out, this is not left to the Westminster Parliament. The Prime Minister

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has to come and ask Parliament for changes, and it is not left to the Executive in the Westminster Parliament to appoint numerous Ministers and junior Ministers. I think the strongest point of objection to my noble friend's Amendment is the one raised by the noble Lord, Lord Hughes, which is that if you put in a figure for a maximum then the maximum tends to be regarded as normal, so if, to allow for all possibilities, the figure of 15 is mentioned they start by saying that they have to have 15. That is a misunderstanding of the reason for the figure, and I recognise that as an objection to putting in a figure.
Lord MACKIE of BENSHIE: Would the noble Lord not say that it was directly analogous to the Westminster Parliament? If the Assembly cannot ask for more money for Ministers then they arc in the same position as Parliament and the Executive at Westminster. They would allow or not allow the Executive to increase the number of Ministers. Would it not be the same?
5.50 p.m.
Lord CAMPBELL of CROY: We return to the question of what happens when the First Secretary is giving advice to the Secretary of State, because the appointment is by the Secretary of State. I would like to ask the noble Baroness if she can tell us what she would foresee to be the answer. These words in lines 12 and 13, on page 9—
"and in appointing the other Scottish Secretaries the Secretary of State shall act on the advice of the First Secretary"—
are, I think, a little ambiguous. Does he have to accept the advice? If the First Secretary is suggesting that there should be 30, the Secretary of State might reasonably think that that is not what is expected in the Bill and quite wrong; can the Secretary of State override it, and decide that the figure should be on the high side but not 30? He clearly has to listen to the advice, but does he have to take it precisely? I think arising from that we get the analogy. Parliament here is the guardian of the taxpayers' money, and Parliament here also is suspicious of patronage; therefore, Parliament controls what the Prime Minister can do in appointing Members of the Executive. But in the case that we are considering in this Bill
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the final appointment is made by the Secretary of State, who is not himself a Member of the Assembly, and it is not clear to what extent he has to adopt the advice proferred by the First Secretary, or to what extent he can be guided by it but not follow it exactly.
I was saying that the objection the noble Lord, Lord Hughes, has raised, which is one that one has met in other Bills when similar problems have arisen—that is to say, if you put in a figure it is regarded as the maximum—is, I am sure, one which my noble friend recognises raises a difficulty. That is why I hope that when we come to the question of salaries later we may be able to consider some way in which one could control this through salaries. I certainly join my noble friend in thinking that a blank cheque should not be given to the appointment of any number of Secretaries, and then—though they are not being considered in this Amendment—any number of assistants who may be appoined under subsection (4)(b).
I suggest to the noble Baroness that we have to consider a situation where there may be a majority which is going to make use of every legal means in this Bill, when it is enacted, to carry out what they want; they may be doing it for what they think good reasons—and I am thinking in particular of the Nationalists—but it may not he in the spirit of this Bill or the way that the Government think the Bill should be carried out. That is why we have to be careful about drafting the Bill and be clear about whether there is to be any limit on the size of the Executive, whether it is to be done by numbers or whether it is to be done by the total amount of salary.
Lord HUGHES: I am glad the noble Lord, Lord Campbell of Croy, has come down against numbers, but I am interested in what he said about controlling it by finance. If we go on a little further in the Bill we see that it is possible for the Secretary of State to control the numbers through finance because Clause 31 in its first subsection says that the Assembly will determine what is to be paid to its Members, to Scottish Secretaries and to assistants to Scottish Secretaries.
Then it goes on to subsection (2), which says:
"Pending the first determination under subsection (1) of this section of any salaries and

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allowances for members of the Assembly their amounts shall be such as the Secretary of State may direct."
If we were to take the figure of seven suggested by the noble Lord, Lord Drumalbyn, the Secretary of State might say, "There will be £56,000 available for Scottish Secretaries and if you appoint seven they can be paid £8,000 each, but if you appoint eight there is only £7,000 each available; if you appoint 10 it will be £5,600". So in the first instance, where there is bound to be close co-operation between the Secretary of State and the First Secretary, the amount will be determined in two ways, what the Secretary of State thinks is a reasonable figure to pay a Secretary, and what he thinks is a reasonable total figure that Westminster should have to provide. So in suggesting that there should be financial control as a better alternative method of fixing numbers the noble Lord, Lord Campbell of Croy, is on the right lines, and the Bill in fact in the first instance does exactly make that sort of provision possible.
Lord CAMPBELL of CROY: I indicated that I hoped that when we reached the parts of the Bill which cover financial control we could learn from the Government whether the Bill as now drafted would cover the first appointment, as the noble Lord, Lord Hughes, suggests, and what could be done to continue that situation later. It is certainly not clear at present, and I am merely suggesting that this is another way in which it might be possible to deal with the very real problem which my noble friend has raised.
Baroness STEDMAN: I am sure that when we come to Clause 31 we shall find that the views of my noble friend Lord Hughes are exactly those the Government had in mind in the drafting. If I may reply to the earlier question, I have taken advice. The Secretary of State must act on the advice of the First Secretary, both on the numbers to be appointed and the members; he has no discretion whatever. I hope that clears the mind of the noble Lord at this point of time. I have sufficient confidence in the elected Assembly to think that in this first instance they will be trying to do everything they can to get off to a good start and that we should do nothing to try to stop them in that way; we should give them the benefit of
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thinking that they have sufficient discretion and sufficient good sense to lay down a proper sort of recommendation to the Secretary of State which he can accept without any reservations whatever.
Lord CAMPBELL of CROY: May I thank the noble Baroness for giving that very clear interpretation of the Bill, but it does show that the Secretary of State, who makes the appointments, has absolutely no discretion at all; it is indeed going to be the First Secretary of the Assembly who is going to stipulate how many Secretaries there should be. That does make this whole question raised by my noble friend very important; that is quite definite. Like the noble Baroness, I, and I am sure others in all parts of the Committee, hope that if this Assembly is established all those who are bringing it into operation at the beginning will be reasonable and sensible and act in the way the noble Baroness has suggested. But we have also to make sure that this Bill as an Act provides for the possibility that those who may not want the system to work, or may want to go off in some direction which we at the moment would not expect or wish them to do, might try to drive a coach and horses through this kind of provision. Therefore, I think it is our duty, if possible, to see whether we can put into the Bill boundaries which make sure that something quite offensive is not done. At the same time we recognise that if the Bill is carried out as we all expect this will not be necessary, but none the less we should not provide a completely blank cheque for somebody to act irresponsibly.
Baroness STEDMAN: I am sure it is not the Government's intention to give a completely blank cheque to anybody. I am equally satisfied that as we progress through this Bill, as the days and weeks go by, we shall find that it is hedged around with safeguards and some of the noble Lord's worries will disappear.
Lord DRUMALBYN: I am very grateful to the noble Baroness, Lady Stedman, who always answers these matters with great charm and competence. But I think, if I may make so bold as to say so, that she has really missed the point here. Obviously it was apparent to me that a global sum would have to he allotted for this purpose. I agreed with

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the first speech of the noble Lord, Lord Hughes, very much indeed. I thought he put the matter very clearly. When it came to his second speech I must say I was rather horrified.
When the Government make up their mind how much money to allot for the purpose of paying Secretaries, they must have in mind a salary and the number of people who they think can cover the ground. I quite agree that it would be possible for the First Secretary to say, "hat's not good enough. We must have more than that and we are prepared to accept less salary". When he says "we" he probably means, "I told them that they must accept less in salary". That I can understand. However, it must be the case that the Government have in mind some kind of distribution of duties which will result in a corresponding number of people who are to discharge those duties. How on earth can they settle the sum to be paid to the Secretaries otherwise? How on earth can they do it?
Lord GLENKINGLAS: Of course, they have so decided and they have put it in their White Paper. It is perfectly simple and clear that at this particular stage it is difficult to come out publicly and say how many it would be. My noble friend is absolutely right—they must know.
Lord DRUMALBYN: If I may say so, it is very pleasing to be able to say, "Ah, the Assembly will decide". Of course, the Assembly will vote on the matter ultimately and different parties contending for the election may have different ideas on how many Secretaries there should be, and they may themselves have plans to concentrate on certain subjects and to distribute the portfolios in certains ways. Certainly it would be very surprising if all of this were dumped, so to speak, on the First Secretary when he was appointed, without any previous consideration.
I should have thought that in planning a new Assembly and a new system people should be studying this matter and deciding what changes they want. When moved the Amendment I had hoped that that had already been done so that at any rate proposals from civil servants or possibly from the present Minister would be made as to the kind of pattern—that is
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all we are asking—that will result. Will there be just a few Scottish Secretaries and a multitude of assistants dealing with separate subjects, or will the Secretaries' responsibilities be rather wider and the number of assistants fewer?
I should have thought that that was a very important matter on which to make up our minds or, at any rate, on which the Government should have a clear idea of what is intended. So I am disappointed by the response. It is not the case that anyone wants to take away the decision from the First Secretary as to whom to recommend for the jobs or what the jobs should be. However, he will act on advice when he is first appointed as First Secretary and we want to know what sort of advice he will receive.
If we are planning a whole new system, surely that is something that we should expect to plan as well. That was the purpose of the Amendment. Obviously, I do not intend to press it because, as I have said before, I do not think that seven is necessarily the right number. I put down a number that roughly corresponded. I wanted to know whether roughly the system of administration in Scotland for the devolved subjects would run along the same lines as the system of administration that exists today.
The Government cannot tell us. They cannot tell us what will be recommended. Whatever is recommended, I should imagine that the Assembly will be very unlikely, in its early stages, to dispute it. It must be the leaders of the Parties who will determine these matters in the first instance. I wanted to know the kind of advice that they were going to receive, and I am sorry that I cannot get any information about it. I beg leave to withdraw the Amendment.
The Earl of PERTH: Before the noble Lord withdraws his Amendment, I should like to make one point with regard to the replies given by the noble Baroness, Lady Stedman. First of all, she told us to trust the people who are to be chosen—the First Secretary and so forth—but a little later, in answer to the noble Lord, Lord Campbell of Croy, she said in effect, "We are not going to give them a blank cheque: there will be all sorts of balances and so forth in the Bill before the end of it". That is precisely what

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we want to know and it is right that this matter should be pursued. I do not think that it has been adequately answered at present.
The Earl of SELKIRK: I also have great sympathy with what the noble Lord, Lord Hughes, said. If we set a figure people will go right up to it. There is a simple way out of this difficulty. We fix the number at, for example, seven, and say that any increase must be determined by Act of the Assembly. It is a perfectly simple solution and the way that Secretaries of State are set up in Westminster. There is no reason on earth why that should not be done. That would ensure the consent of the Assembly There is—and we must not forget it—the element of patronage. I shall not go into the figures as regards the Government compared with the total number of Members of both Houses and so on, but I must admit that they look rather ugly sometimes. We cannot utterly exclude this element from our consideration.
Lord DRUMALBYN: Before the Amendment is finally withdrawn—because the debate has gone on—I should like to put one point to the noble Baroness and her colleagues on the Government Front Bench. Let us make it clear that we are not setting up a constitutive Assembly. We are legislating for the whole thing. We have been recommending that there should be a conference on the whole aspect. The Government have decided to put it all in the Bill and there is a very great deal of difference between setting up a constitutive Assembly and setting up, under the strict confines of a Bill, a whole system. I think that this matter will recur in the course of our debate and I hope that it will be borne in mind. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.7 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 96:
Page 8, line 41, leave out ("prerogative and other").
The noble Viscount said: It seemed to me only fair on the Government member, the noble and learned Lord who will
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reply to this Amendment, that the question, "what is the prerogative?" should not be raised on the question, "Whether the clause shall stand part?"— because if ever there was a difficult subject it is this. I therefore put down the Amendment in order to give express notice that I should very much welcome an explanation by the Government as regards what exactly is being devolved under subsection (3) of this clause.
The Government have seen fit to put it in terms of
"Her Majesty's prerogative and other executive powers".
They would not—as was said about me the other day rather flatteringly by the noble and learned Lord, Lord McCluskey—have used both sets of words unless they meant different things. Therefore, there must be substance in these powers and duties—as I think the noble and learned Lord, Lord Wilson of Langside, will suggest—that are being dealt with.
It would be wholly inappropriate for me to try to speculate what is the realm of prerogative that is here being dealt with. It is far better for noble and learned Lords who know a great deal more about it to do so. However, we should like fairly early on in our discussions—if this is to be at all a controversial matter—to hear what the Government propose should be included in this so that we may think about it and comment on it.
Some of my noble friends—and I think that I include my noble friend Lord Selkirk—are greatly concerned about the scope. However, I do not know whether I am or not, because I do not know what it means and what it comprehends. Perhaps I shall end up by being in the same position as my noble friend and equally concerned. Of course, it may be that the whole matter is so residual, shadowy and inconclusive that it is only put in for safety's sake, in which case there may be nothing to be concerned about at all.
Therefore, if the noble and learned Lord could help me fairly soon by saying what is involved and what is the difference between the prerogative and the executive powers that are being devolved, giving perhaps some illustrations in relation to matters that are being devolved by reference to Schedule 10, then I believe

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that we should all be able to think about this matter and even discuss it straight away with a good deal more knowledge at our elbow. I beg to move.
The Earl of SELKIRK: As my noble friend Lord Colville of Culross referred to me, perhaps I might take quite shortly the anxieties that I feel over this. My attention was first drawn to this clause by its extraordinary woolly phraseology. It is extremely uncertain what these powers are and also what the phrase "Minister of the Crown" means. However, I shall deal with that in another Amendment, when I shall hope to persuade the Minister to give a more definite description of what the phrase "Minister of the Crown" means.
Prerogative is difficult but there are a certain number of things which we know prerogative is not. I should have thought that the negative side of prerogative is fairly clear. I should like to quote the late Lord Reid in the Burmah Oil case in which he gave a leading judgment. He said:
"Prerogative is only available for a case not covered by Statute".
The moment Statute steps in, prerogative disappears. I think that that is pretty generally accepted. Here we are transferring prerogative by Statute. With respect, this has never been done in any previous Statutes. That is a very dangerous thing to say and I shall probably get absolute hell for saying it, but I have tried to examine this matter a little.
The Bill goes on to say:
"Her Majesty's other executive powers".
Here we come up against it. Has Her Majesty any other executive powers? Prerogative has been defined as,
"the residue of discretionary or arbitrary authority which has still been left in the hands of the Crown".
What else can there be?—the whole of the discretionary power is left in the hands of the Crown, and there can be no other executive powers whatever.
I do not know what the purpose of this is, but if we want to transfer or delegate prerogative, it can be done. As the noble and learned Lord the Lord Chancellor knows perfectly well, it has been done to Governors, Governor-Generals
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and others in that position. However, I doubt whether the noble and learned Lord could cite an instance where it has been done to a politician, but he may do. The method is by Letters Patent under the Great Seal and it is quite specific in what it refers to and perfectly detailed as to the person to whom those powers are transferred. That is why I believe that this clause is badly conceived.
However, there is a more important issue. If the prerogative is to be used it is their duty to use it. The Simonds edition of Halsbury's Laws of England states:
"The Crown only acts upon the advice of its constitutional advisers."
Are the Executive the constitutional advisers of the Crown? Do they, in fact, have access to the Crown—I understood that they do not and that they have access only to the Secretary of State. That raises the question: Whose Government are they administering? Are they administering the Queen's Government or the Secretary of State's Government?
I have enlarged on the points made by my noble friend Lord Colville of Culross because I want to hear from the noble and learned Lord the Lord Chancellor. It seems to me that this clause needs to be completely redrafted. I may be wrong about this, but I think that it has got off on the wrong foot. Perhaps the noble and learned Lord could say what the Government are trying to achieve by it. If it is simply the use of powers under delegated legislation, that of course is an entirely different matter. However, I very much doubt whether the present drafting will satisfactorily meet the normal constitutional requirements of this country.
6.15 p.m.
The LORD CHANCELLOR: The purpose of the provision in Clause 20(3) is to make it clear that the Executive powers that are to be devolved include prerogative powers. The subsection goes on to say that the powers are being exercised by Ministers or by Scottish Secretaries on behalf of Her Majesty. As the noble Viscount, Lord Colville of Culross, said, although it is true that prerogative powers are residual, the prerogative is still very much alive. It is true, as the noble Earl, Lord Selkirk, indicated, that over the years prerogative powers have been largely

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subsumed into Statute and that these days they are very rarely relied on in any real and effective sense. Nevertheless, the prerogative and the exercise of prerogative powers still function. They include—in, of course, areas which will not be devolved—such matters as the conduct of international relations, war and peace, honours, the Armed Forces of the Crown, and the prerogative of mercy—they are all governed under the prerogative. Those will not be devolved.
But the prerogative also lives on in a number of new and developing areas of Government activity, such as encouragement of the arts and leisure activites. Many of those will be devolved. We think it right to provide expressly for the inclusion of the prerogative powers in Clause 20 in order to ensure that as society and institutions develop, the Scottish Executive should have the necessary powers to deal with the devolved matters that are listed in groups in Schedule 10 to the Bill. Indeed, to exclude the prerogative could result in certain matters that are included in the devolved areas having to be excluded now. I give, by way of example, the provision at lines 20 and 21 on page 50 of the Bill—under the heading, "The Groups of Devolved Matters"—in respect of compensation out of public funds for victims of crime. Although compensation for criminal injuries in Northern Ireland is on a statutory footing, the Criminal Injuries Board, and its activities and awards in England are not on a statutory basis. I think it would be right to describe that scheme as being derived from the prerogative.
Therefore, we think it is useful to have this, so to speak, reserve provision for this field. As the learned author of Dicey said, the term "the prerogative" is:
"a term which has caused more perplexity to students than any other expression referring to the constitution".
That is so. The concept in terms of the quotation given by the noble Earl, Lord Selkirk must also be considered. Then there is the classic statement by Dicey that it constitutes:
"the residue of discretionary or arbitrary authority which at any time is legally left in the hands of the Crown".
It is delegated by the Crown to her Ministers, and the value of this to deal
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with the kind of matters that I have mentioned is useful. Accordingly, we think that it would be of value to provide expressly for it in the terms of Clause 20, which, of course, is a very important part of the Bill, setting out the executive functions that are to be exercised and devolved.
Viscount COLVILLE of CULROSS: I am grateful to the noble and learned Lord the Lord Chancellor for that explanation. However, I think it leaves questions unanswered. I approached the matter in this way. The noble and learned Lord has given us three examples. Of course, everybody knows about the prime exercises of prerogative, such as war and peace and international affairs, which, as I am sure everybody in the Committee instantly appreciates, are not involved in subsection (3). We now have three examples of exercises of prerogative which are in subsection (3). One is something to do with the arts; another is something to do with leisure: and a third is the ability to pay for compensation for criminal injuries out of public funds.
My difficulty about it is that in the Bill we are being specific to a point of pedantry about the powers and the fields of activity that are going to be devolved upon the Scottish Assembly and upon its Executive Members, the Scottish Secretaries. In every other field of activity we have lists. We have list upon list of things that they may do by themselves, or conjointly with somebody else, or with the consent of somebody else. The one thing that is not listed is the prerogative. If it is right for this Committee to scrutinise—and I have no doubt we shall be doing so—the various lists when we come to them (and that will be very soon in the case of the first group of Schedules), I think that it would be wise for us to have as comprehensive a list as can be provided of this realm of activity, too.
It would plainly be useful, as the noble and learned Lord said, for the Scottish Secretaries—the Scottish Executive—to have these powers. No doubt they would enjoy using them. For all I know, they would use them very well. But we may equally have an argument from somebody that it would be useful for the Scottish Assembly to have within its purview something like agriculture which, at the

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moment, it has not got. We shall be having arguments about whether it should have forestry. At the moment, a decision is being taken about these one way or the other, and the Government can be pressed to enlarge it or relax it. At any rate, we have the list, but not here.
Is it wise that this Committee should allow this to go by—I suspect that this is really what my noble friend Lord Selkirk is worried about—on the general plea that it is useful? Lots of things would be useful. No doubt it would be marvellous for the Scottish Secretaries to exercise all these powers, particularly if this is the only area where they are not subjected to a list. But that does not mean that the Committee ought to let it go without getting the list out of the Government, and that is what, one way or the other, I am still hoping to do. Can we have more than the three examples that the noble and learned Lord has given us so far, or would he prefer to come back to this on another occasion with a fuller list?
The LORD CHANCELLOR: It is difficult to give a full list because, as I say, the existence of this residual power in the Crown is useful in a changing society to deal with new provisions, and a criminal injuries provision is a good example.
Viscount COLVILLE of CULROSS: I did not mean that the noble and learned Lord should speculate upon future developments. I meant that we should like a list of the things that, as at present, he would envisage coming within this category.
The LORD CHANCELLOR: That may be possible. I should like to consider that. Another area where, traditionally, the prerogative has been used and the matter has not been carried into statute is the provision of services for war disabled. That is another illustration of circumstances where the powers of the Crown are used and delegated to Ministers to deal with the situation. I shall give thought to the suggestion that we can identify with sufficient certainty the whole range of matters which are now reliant on the prerogative.
It may be difficult to do so, I do not know. But I must emphasise that these
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prerogative powers will only be exercisable by Scottish Secretaries if they relate to devolved matters and are exercisable in, or as regards, Scotland. That is an important limitation upon their applicability. I shall with pleasure, look to see whether this could practically be done, but it is wise to state expressly that these residual powers exist, that they are exercisable where they are relevant to devolved matters and that they should be expressly provided for in the Bill itself.
6.25 p.m.
The Earl of SELKIRK: I find it difficult to understand the noble and learned Lord. He has not said whether Ministers or Secretaries of the Scottish Executive have access to the Monarch. How can they advise the Monarch on the use of prerogative powers which are residual arbitrary powers—the noble and learned Lord has not denied that—unless they have access? I also asked the noble and learned Lord whether he could give one example in which prerogative powers have been transferred to anyone by statute rather than by letters patent. I have glanced at this, but I find no such cases.
If there is compensation for crime, that must be money found by Parliament. The Sovereign has no money. If they are to pay compensation for crime, there must be a statute making it possible for this money to be made available. I find it hard to believe that this is purely a question of prerogative. The noble and learned Lord said something about disablement compensation. That must be money found from Parliament. Will the noble and learned Lord look closer at this? If he wants these powers to be used by the Scottish Executive, it is simple to put a draft into the statute saying that it has these powers. To transfer vague arbitrary powers is not only an entire innovation but is very vague and unsatisfactory.
The LORD CHANCELLOR: They are not arbitrary powers. It was decided a long time ago that the exercise of the prerogative must be under the law. One of the great fights between King and Parliament was to make the Crown itself subject to the law and the rule of law, and the common law. There is no requirement that the Secretaries have to advise the Crown as an element here. What is

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done here is to provide that the executive powers may be exercisable by the Scottish Secretaries on behalf of Her Majesty.
With regard to the matter referred to by the noble Earl, it is true that the monies used to fund the criminal injuries scheme are provided by Parliament. That is certainly true, but the structure of the scheme, conditions for payment, and matters of that kind, are all creatures of the Royal Prerogative. That is the useful role that it plays as a residual element in our constitutional, administrative, and executive arrangements where statutory provisions have not been expressly made that this residual power should exist.
It cannot be used arbitrarily. It is subject to the law, and the rule of law. The express reference to it is useful in that, without it, its power, and use, might be challenged if the Scottish Secretaries sought to use the limited powers that are available within the devolved field. However, I shall look to see whether the listing that has been suggested of areas where this prerogative activity is presently applied could practically be done, and I am willing to revert to that point in due course.
Viscount COLVILLE of CULROSS: That is certainly a generous offer by the noble and learned Lord. I am fairly sure that he will be able to do this because I am not asking him, as I said and as I again make clear, to speculate about what may occur in the future by way of developments of the prerogative. I am also in entire agreement with him that there may very well be perfectly valid areas of activity which are not at the moment covered by anything other than the prerogative and which should properly be carried out by Scottish Secretaries or by the Executive.
He cannot be right to say that if we do not put it in the exercise of these powers might be subject to challenge, because it will be the subject of challenge anyway, potentially; the exercise of these prerogative powers is, as he said, confined to the extent to which they are used in connection with devolved matters. Therefore, since they are not themselves devolved matters, as I understand it they are in a sort of limbo, and the question whether they, which are not devolved matters, are being used in connection with devolved matters is, I should have thought, plainly justiciable and open to
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challenge, since this prerogative is within the rule of law, as the noble and learned Lord said. It is for that sort of reason that this Parliament should know, when it is conferring these powers, what it is conferring.
If the noble and learned Lord in correspondence, or when I table another Amendment for the next stage, gives us an illustrative list and there are two or three things which may have been left out, I will not complain; it is the range of activities I am after, and I know the noble and learned Lord will produce the most important ones. If there are still one or two fuzzy at the edges—areas of activity which may or may not be covered by the Royal prerogative—I will not complain about that. That is the reason why I raise this matter. I do not think it has been aired before anywhere on this Bill and, on the undertaking which the noble and learned Lord has given—
The Earl of SELKIRK: Before my noble friend says what I think he is about to say, may I say that I disagree with the noble and learned Lord the Lord Chancellor? Prerogative is not covered by Statute; arbitrary powers are not so covered, and I must respectfully ask the noble and learned Lord to look further into this. This is not a statutory matter. When it is statutory it ceases to be prerogative. I gave a quotation from the late Lord Reid in the leading judgment in the Burrnah Oil case which makes that perfectly clear. I urge the noble and learned Lord to look at the matter again.
The Lord CHANCELLOR: I entirely agree with that. If the power previously exercised by prerogative is provided for by Statute, the prerogative power is subsumed in the Statute, but the exercise of the power itself does not operate in a lawless limbo; it is subject to the disciplines of the common law and it cannot be done outwith that. I have one precedent which perhaps the noble Earl, Lord Selkirk, might care to look at for what has been done. It is in the Northern Ireland Constitution Act 1973; it is not an exact precedent, I concede, but in Section 7(2) there is this provision:
"As respects transferred matters the Secretary of State shall, as Her Majesty's principal officer in Northern Ireland, exercise on Her Majesty's

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behalf such prerogative or other executive powers of Her Majesty in relation to Northern Ireland as may be delegated to him by Her Majesty".
It is not an exact parallel but it is at any rate an interesting precedent for a statutory provision for the transfer of prerogative powers from Her Majesty to a Minister.
Lord FRASER of TULLYBELTON: Will not the effect of this provision, if it is carried, be that the powers, in so far as they are transferred to Scottish Secretaries, will no longer be prerogative powers but statutory powers under this measure? That seems to me to be so; that what is proposed is to cut down the prerogative in relation to Scotland and certain undefined areas. Will not the result be that United Kingdom Ministers, in so far as they have authority in that area, will be exercising prerogative powers, whereas the Scottish Secretaries will be exercising a sort of hybrid statutory prerogative power, whereby the utmost confusion seems likely to arise?
Is it really necessary to provide by Statute for the transfer of prerogative powers? Is not the technical position that Her Majesty may listen to such advice as she sees fit to receive and may exercise her prerogative powers on the advice of anybody whom she thinks is suitable to advise her? No doubt if Her Majesty did that improperly in any way, United Kingdom Ministers would be held to blame for it; hut, strictly speaking, is that not the position? If so, why is any statutory transfer necessary?
The LORD CHANCELLOR: I think it was intended as a precautionary measure to ensure that these prerogative powers were exercisable. It may well be that it is not necessary to have included it in the Bill and I will certainly look at that; we do not want to complicate matters unnecessarily. The fear has been that it might not be regarded as an exercisable power by the Secretaries, and that is why the precedent in the Northern Ireland Act, which I concede is not an exactly full precedent, may have started this procedure. As I say, I will look at it. If we can achieve what is sought without it, then certainly, but that is the reason why the Government have included it at present in Clause 3.
Viscount COLVILLE of CULROSS: I have a nasty suspicion that the more this is considered the more difficult it will get. The precedent from Northern Ireland, even if it were examined with the beady eye that is being exhibited on this occasion, does not seem to me to be entirely apt because I think, if I heard the reference correctly, that it was merely a statement that the prerogative was to be exercised by somebody who was already a Minister of the Crown. If so, the only thing in the least unusual about it is that it had to be said at all. I think that is right, and therefore what we were dealing with on that occasion was an ordinary fact of life with which we are all familiar.
The noble and learned Lord on the Cross-Benches is, I think, suggesting that by putting the reference to this part of the prerogative in the Bill at all, it vitiates its character as being prerogative any longer. Whether that means there is a parallel part of the prerogative, exactly corresponding, left with United Kingdom Ministers—because that part has not been taken away from them—I am not sure; I should think not, hut one never knows. It might be there should be because this might be something that should be concurrent when one looks at the subject matter that is being transferred. After all, there are a number of things in this Bill which are being devolved, but are being devolved either concurrently or are to be exercised with consent, and it does not necessarily follow that all the aspects of prerogative should be transferred lock. stock and barrel to the Scottish Secretaries without a concurrent opportunity to exercise them or to give advice to Her Majesty residing in the United Kingdom Secretary of State. There is, therefore, that aspect of it as well.
I do not want to pursue this today. I hope we have given the Lord Chancellor an indication of the possible areas of concern and the possible areas we should like to investigate. This is not an unreasonable request, for the sort of reasons I have given, and I look forward to tabling the same Amendment in exactly the same terms on Report and receiving a fascinating answer from the noble and learned Lord. Meanwhile, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 248 and 307 not moved.]
6.39 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 97:
Page 9, line 4, after ("appointed") insert ("and may be dismissed").
The noble Viscount said: Happily, I hope the Committee will permit me to discuss with this Amendment, Amendments Nos. 98, 99 and 100, because they are all probing Amendments to see what happens about the termination of the career rather than the appointment of one of the Secretaries in the Scottish Assembly.
There have been inserted in the Bill some formulae which I do not understand—though I am sure they are well precedented—but which seem to be unnecessarily complicated. The provisions for appointment in subsections (4) and (5) are quite clear; who does it is set out, and the simple proposition is put forward that the Secretary of State shall appoint Scottish Secretaries, and the First Scottish Secretary may appoint assistants, and so on.
But when it comes to subsection (6), the provision for their dismissal, or any other termination of their office, is put in this way:
"A Scottish Secretary shall hold office at Her Majesty's pleasure …".
What does that mean? It is also stated that
"… an assistant to a Scottish Secretary may be removed from office by the First Secretary".
That is quite plain, but does the first limb of subsection (6) mean that just as the Secretary of State can appoint a Scottish Secretary, so he can dismiss one? If not, what does it mean? If it merely means what I have just said—that he may dismiss him—why do we have to have this phraseology? I am not sure what "Her Majesty's pleasure" means in this context, and until I know I am not sure whether there is anything here that I should like to criticise. This is a purely probing Amendment in order to give the Government the opportunity to explain why they use this terminology. I beg to move.
Lord KIRKHILL: I start by saying to the noble Viscount, Lord Colville of Culross, that these probing Amendments are useful and informative to the Committee if they enable me to explain the Government's position. I must say that
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I completely agree with him; speaking purely as a layman, after struggling through some official explanations earlier in the day, I cannot quite say that I am totally cognisant with every nuance that has been suggested to me. However, I can say to the Committee that these Amendments contain specific powers providing, as the noble Viscount has just said, for the dismissal from office of the First Secretary and the other Scottish Secretaries.
In order to explain the provisions must start with the question of appointments, which is perhaps putting the cart before the horse: but this is probably the most straightforward way of dealing with these provisions. To understand the procedure for appointments we must look at subsections (4) and (5) of the clause. Under subsection (4)(a) the Secretary of State is formally to appoint Scottish Secretaries, including the First Secretary. Subsection (5) limits the Secretary of State's discretion. At (a), so far as the First Secretary is concerned, if the Assembly nominates one of its members for appointment as First Secretary, that member must be appointed by the Secretary of State. The means of nomination are left to the Assembly itself to determine, and these might be established in the Assembly's standing orders.
So far as the appointment of the other Scottish Secretaries is concerned, the Secretary of State must act on the advice of the First Secretary—
Lord DRUMALBYN: I should like to make a point at this stage so that there is no misapprehension. Am I not right in thinking that the first standing orders for the Assembly would be drawn up by the Secretary of State—otherwise it could not get going at all? Therefore, presumably the nomination for the first person to hold the office of First Secretary will be done by the Assembly under the standing orders prepared by the Secretary of State.
Lord KIRKHILL: My noble and learned friend draws my attention to Clause 7 and he confirms to me, and I, in turn, confirm to the noble Lord, Lord Drumalbyn, that the point he makes is correct and is relevant to the position which I am underlining.

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The other important provision here is the first part of subsection (6) which provides that Scottish Secretaries are to hold office at Her Majesty's pleasure. The noble Viscount, Lord Colville of Culross, lingered on the phrase "Her Majesty's pleasure". I can only say to him at this stage that to conjecture about that phrase is rather wider than my remit this evening, and I must leave that point there, for the moment at any rate. I can go on to say that the provision reflects the status enjoyed in constitutional law by others who exercise powers derived from the Crown. A quick example are United Kingdom Ministers. They hold office at Her Majesty's pleasure, which covers everything to do with tenure of office, which includes appointment, dismissal and that kind of thing. In the Government's view the Scottish Secretaries should have this status.
However, there is a major difference between United Kingdom Ministers on the one hand, and Scottish Secretaries on the other. It arises from a major proposition running throughout the Bill. Although the devolved Executive is to be equipped with various powers and duties, all of which derive ultimately from the Crown, there is to be no direct contact between the Crown and the Scottish Executive. There will, however, have to be a chain of authority from the Sovereign to the devolved Administration, and for this reason the Secretary of State is interposed. He therefore appoints the Scottish Secretaries under subsection (4)(a).
I now come to dismissal, since it is also covered by subsection (6). Dismissal would be signified by the Secretary of State, but in exercising this power he would be bound by the provisions of the Bill on appointment. If the Assembly nominates a new First Secretary, the Secretary of State has no choice under subsection (5) but to appoint the Assembly's nominee. If the previous holder of the office had already resigned, there would be no difficulty of course. But what would happen if he had not? Before the Secretary of State could make the new appointment, he would need to signify the withdrawal of Her Majesty's pleasure from the appointment of the sitting First Secretary in terms of Clause 20(6). In other words, the sitting First Secretary would be removed from office.
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Similar arguments apply to the appointment of Scottish Secretaries. If the First Secretary wished to dismiss a member of his Executive, and appoint a replacement, he would advise the Secretary of State accordingly. Thus, dismissal is dealt with not because subsection (6) says so, but because subsection (5) ensures that the Assembly and the First Secretary control appointments. This is the way in which appointment, dismissal, and the new appointments would work in practice.
Different considerations apply to the appointment and dismissal of assistants to Scottish Secretaries. Assistants will not be exercising directly Prerogative or other executive powers on behalf of Her Majesty, and it is appropriate in their case to provide that both appointments and removals from office are to be at the hand of the First Secretary. The Bill provides for appointment in subsection (4)(b) and for the dismissal of the assistants in subsection (6). That, as I understand it, is the Government view at this stage.
The Earl of SELKIRK: May I ask one question? The noble Lord is saying that Scottish Secretaries hold office at Her Majesty's pleasure, but does that not really mean holding office at the Secretary of State's pleasure? It is as simple as that, is it not? The words "Her Majesty" should be replaced by "Secretary of State". That seems to be the interpretation the noble Lord is giving. Is that correct?
Lord KIRKHILL: As I understand the thread of principle—if that is not an over-statement—which is running through the Bill, it is that there has to be this essential link between Crown, Secretary of State, and the Scottish Executive. The Bill depends upon that link. I was referring to Clause 20(3), which we talked about on an earlier Amendment, and there is also subsection (6).
Viscount COLVILLE of CULROSS: I do not think we have quite got to the end of this, because I doubt whether the noble Lord, Lord Kirkhill, has told us all the ramifications of Her Majesty's displeasure. I can entirely understand that Her Majesty might well be displeased, and the Secretary of State would act upon

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that, if, in the case of the First Secretary, the Assembly actually said that it wanted somebody else, and there would be the equivalent situation with Scottish Secretaries. But does it also mean that the Secretary of State can signify Her Majesty's displeasure in circumstances where the Assembly has not said that it wants a new First Secretary, or in circumstances where the First Secretary has not said that he wants to replace Mr. McA with Mr. McB?
If not, what is there in the Bill which says so? I certainly do not see that this is in any way explained at the moment. And, if the Secretary of State is not able, on behalf of Her Majesty, to exercise Her Majesty's displeasure except at the behest of whichever Scottish institution it may be, this is very constrictive upon the exercise of Her Majesty's displeasure, is it not?
Lord McCLUSKEY: I wonder if I may endeavour to assist here. What I think is plain, if one takes the example of the First Secretary, is that, if the Secretary of State for Scotland were to choose to dismiss the First Secretary, the Assembly could instantly instruct the Secretary of State—and he is obliged to follow that instruction—to reappoint that same person as First Secretary. Therefore, there is no conceivable circumstance in which the Secretary of State would exercise Her Majesty's displeasure to sack the First Secretary, knowing that he would have to be reappointed and that they would just go on playing a kind of ping-pong. So, unless one wants to enter the realms of fantasy, the provisions in the clause cover that.
In relation to Scottish Secretaries, again, the Secretary of State, in appointing Scottish Secretaries, acts upon the advice of the First Secretary; so that if he chose to signify Her Majesty's displeasure and did that without the advice of the First Secretary, he would instantly be advised by the First Secretary to reappoint that same person. So unless, as I say, one goes into the realms of fantasy, one surely accepts that these provisions in these subsections of the clause fill out all the content that the noble Viscount sought when he asked the question earlier about the true meaning of "Her Majesty's pleasure".
Lord DRUMALBYN: Perhaps I may be allowed to say that when we come to Amendment No. 101 I shall be exploring this further, because I do not really think that the noble and learned Lord has quite covered the point.
Viscount COLVILLE of CULROSS: I am very happy to let my noble friend do that, and we shall be very interested in what he says. I do not think I am being wholly fanciful about this. What the noble and learned Lord, Lord McCluskey, has now said is that, although he cannot envisage a situation in which it occurs, the Secretary of State will be able to dismiss either the First Secretary or a Scottish Secretary even when there has not been a request from the proper Scottish body or person to replace him with somebody else. I quite agree with the noble Lord that that may not be, as we can envisage it, very likely to happen; but the point is that the noble and learned Lord has told me that it can happen. I do not know in the least what may occur in the Assembly, and it is as well to be clear what we are actually doing.
I do not think it is at all likely that this power would ever be used in any way other than that which the noble Lord, Lord Kirkhill, first explained; but suppose there arose an impasse of some sort in the Assembly. Suppose that the Parties in the Assembly were evenly balanced but they had not been evenly balanced when the First Secretary was originally appointed. Suppose that there was a by-election, that there was a change of Party and that we had a situation where the Executive of the new Assembly was not able to act. In those circumstances, you would never get a situation where you would get a clear nomination for a new First Secretary, but somebody would have to break the deadlock.
I shall not go on speculating, but I think there are political circumstances where a power in the Secretary of State to deal with a crisis would be an extremely good thing. All I am trying to find out from the noble and learned Lord, Lord McCluskey—and I think he has told me the answer—is: can the Secretary of State do it? Is he in the same position as the Queen in relation to the United Kingdom Prime Minister? I think the answer is, "Yes, he is", and that is part

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of the meaning of "Her Majesty's pleasure".
Lord McCLUSKEY: May I also intimate to the noble Viscount that these questions of course arise, as the noble Lord, Lord Drumalbyn, has indicated, on Amendments proposed by himself and also on Amendments by the noble Lord, Lord Gray. So I am certainly coming to this more fully; and, indeed, it is because I am dealing with those Amendments that I presumed to intervene at this stage on this other matter.
Viscount COLVILLE of CULROSS: We shall have it discussed in a moment, in that case. I assume that, so far, I have not misled the Committee by putting words into the mouth of the noble and learned Lord; but, at any rate, I will leave it for him to deal with it later.
Lord KIRKHILL: I would merely say that mine is the greater hope that I have not misled the Committee.
Viscount COLVILLE of CULROSS: I am sure that the noble Lord has not done any such thing, but we shall see what is the situation in a moment. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 98 not moved.]
Lord STRABOLGI: Before we embark on the next Amendment, I suggest that it may be for the convenience of the Committee if we break to take other business and resume at about 8 o'clock. I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

IMPORT OF LIVE FISH (SCOTLAND) BILL [H.L.]
6.56 p.m.
Viscount THURSO: My Lords, I beg to move that this Report be now received.
Moved, That the Report be now received.—(Viscount Thurso.)
Lord CAMPBELL of CROY: My Lords, I was not able to be present at the Committee stage of this Bill, as was explained by my noble friend Lord Mowbray at the time, but Amendments, one of them being in my name and in the name of my noble friend, which I understand were acceptable to the noble Viscount, Lord Thurso, and also to the Government, were made. But the noble Viscount himself proposed that two clauses should be removed from the Bill, and the main one was the one dealing with compensation. I understand his reason, which, if I may summarise it briefly, is that the first imports of coho salmon, the only ones that are known about, have now reached maturity, and therefore tile persons concerned are unlikely to need to he compensated. Whether or not they sell them, the value of their experiment has been realised. I understand that the removal of the compensation clause is not causing distress or grievance among those concerned outside your Lordships' House. The other clause which was removed was also a financial clause; and, as a result, I think the Bill does not require a Money Resolution. I think it would be helpful if the noble Viscount or the Government could confirm this.
This seems important to me, because the Bill, which has now been in your Lordships' House twice—because it was introduced and, I think, fully examined by this House in the last Session—is in a form in which I think it is acceptable to everyone concerned. I may be wrong, but that is the impression that I have; and t think the noble Viscount is to be congratulated on his tenacity and flexibility in adding to the Bill and, later, subtracting from it. But what really matters is whether it is going to be easy for the Bill to obtain a passage through another place, because at this stage in a Session it is virtually impossible for it to go through if it needs a Money Resolution, which the Government have to provide.
That particular hazard has now been removed, but if the noble Viscount has found a Member of another place to sponsor and pilot it there—and I am sure he will have, because the Bill commends itself generally—what chance has he of getting it through? The answer is, at this stage only with luck without debate, and if no one objects to it going through without debate. I should he personally quite

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pleased if that happened, because we have been able to discuss it all here. But it is possible that Members of another place may think that at least it needs to be discussed. I should like to ask whether the noble Viscount can tell us any more about that; whether there is a Member of another place who is confident that he will be able to get it through, as the expression is, "on the nod".
My Lords, if that proves not to be possible, I do not think that is any reflection upon the Bill because I think that what we have done is to produce what could be described as a model Bill for an opportunity when it arises. Here I think the Government may be able to help because, if in the coming Session a Member of another place is lucky in the ballot—and only the first eight normally have an opportunity of getting a Second Reading and a run for their Bill—then I hope that the Government may have this as one of the possibilities for Members of another place who are looking for subjects on which there is already general agreement that legislation is needed.
I think that after all the consideration it has had in this House, it can be regarded as a model. What matters really is its passage through another place. I think I could suggest to the noble Viscount—and I am sure he will realise that I am saying it with all respect—that I do not think he need again introduce it into this House "for a first time in yet a third Session in the coming Session. What matters is its chances in another place.
Lord KIRKHILL: My Lords, I think your Lordships know that the Government support wholeheartedly the underlying principle of the noble Viscount's Bill. The difficulty is, as the noble Lord, Lord Campbell of Croy, has just said, that no one can give affirmation that it will pass through the other place, due to the fairly congested Parliamentary programme there. What I can say to your Lordships is that I have reported all that has been said in this House to my right honourable friend the Secretary of State for Scotland.
Viscount THURSO: My Lords, may I take this opportunity to thank your Lordships for the help which you have given me throughout the passage of this
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Bill and its little predecessor. This is undoubtedly why it was possible for the noble Lord, Lord Campbell of Croy, to say that it is a model Bill. I cannot claim credit for that. I claim credit only for having aroused your Lordships' interest in it. As to its opportunities in another place, I may say that I have had very warm expressions of desire to help in another place from all Parties-literally all Parties in Scotland, including those not really represented in this House. I hope it may get through because an element of time is involved since, as the particular import that has been referred to grows, so it becomes more important, if we can, to pass the Bill.
I cannot guarantee your Lordships anything. May I perhaps use a Canadian metaphor, since it is the West Coast Canadian salmon that is referred to, and say that I feel rather like an Indian in a canoe shooting a particularly fast-flowing rapid. I realise that at any moment a snag may come up and sink the boat. On the other hand, if one is lucky, one may get through. I hope that this is the case.
On Question, Report received.

AVIATION SECURITY FUND REGULATIONS 1978
7.4 p.m.
Baroness STEDMAN: My Lords, I beg to move that the Aviation Security Fund Regulations 1978, a draft of which was laid before this House on 23rd March 1978, be approved. These regulations are to be made under Section 2 of the Civil Aviation Act 1978, which we passed just before the Easter Recess, which I am sure is still fresh in the minds of noble Lords. The House will recall that Section 2, empowers the Secretary of State to make regulations for requiring aerodrome authorities to pay him a levy which will go into the Aviation Security Fund, out of which he may make payments reimbursing the cost of the security measures that fall to be made under the Protection of Aircraft Act 1973 and the Policing of Airports Act 1974. These regulations set out the detail as foreshadowed in the debates on the Bill. They require the aerodrome authorities of 28 aerodromes which were owned or managed by the Civil Aviation Authority or licensed by them

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for public use on 1st March 1978, which had more than 50,000 passengers in 1976, to pay contributions to the Fund. The 28 aerodromes are listed in the explanatory note to the regulations.
The contributions to be made by aerodrome authorities are calculated on the basis of 80 pence for each passenger in excess of 2,000 who arrived at that aerodrome in each month, with certain exceptions which are set out in Regulation 2(2). The figure of 80 pence was announced by my right honourable friend the Parliamentary Under-Secretary of State for Companies, Aviation and Shipping as long ago as 27th May last year. The way it was calculated was set out in a reply by my noble friend Lord Oram to my noble friend Lady Burton of Coventry on 15th March 1978—Official Report, cols. 1467–68. The House will note that Regulation 3(1) provides that the first month begins on 1st April 1978, although the regulations do not formally come into operation until 29th April 1978, provided they have been approved by both Houses of Parliament.Airport authorities have already taken account of this liability in fixing their landing charges which were increased on the traditional date of 1st April; but the levy does not have to be paid to the Secretary of State until July. I beg to move that these draft regulations be approved.
Moved, That the draft Aviation Security Fund Regulations 1978, laid before the House on 23rd March, be approved.—(Baroness Stedman.)
Baroness BURTON of COVENTRY: My Lords, I could not possibly let these regulations go without making comment. As the House knows, I personally very much regret that they have been laid before Parliament. In fact, I would not have believed that any Government could deny the principle that it is the duty and responsibility of the Government, of the State, to protect its citizens from attack by the Queen's enemies. Yet this is what is happening under these regulations. I see it as a retrograde step without limitation. I say "without limitation" because I feel it is so. I would ask the Minister whether it is then the intention of the Government to tax sections of the community which may be at risk. If so, are they going to tax all of them; or is this to be done on a selective basis? Quite
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honestly, with these regulations and this principle, I do not see where the matter can end.
Neither airlines nor their passengers are responsible for creating the security risk at airports. They are merely the victims of terrorist attack. I should have thought that it was universally accepted that the aim of hijackers and terrorists is to bring pressure on Governments. Passengers do not create the need for this service. I would only say to my noble friend the Minister concerning these regulations that we do not tax workers at airports, we do not tax visitors at airports; and I think that it is quite abnormal for persons living near or passing through problem points to be subject to a special tax. The decision taken by our Government is opposed by the airlines; it is opposed by our partners in the European Community; it is opposed by our own airport authorities throughout the country.
My Lords, had it not been for the imposition of a Whip the Bill would not have passed through this House. We lost by two votes—and, although it is small comfort, many noble Lords have told me since that had they listened to the debate they would have voted differently. I hope that the Government realise that there is very strong feeling about this Bill. I believe—and I think it is quite obvious—that the Government are taxing one section of the community which is at risk from terrorist attacks. I maintain that it is a function of Government and of the State to provide protection against such threats. It is not something that has to be bought by individuals, and I would only say that I greatly regret that a Labour Government have taken such a decision.
7.10 p.m.
Viscount THURSO: My Lords, I should like to support what the noble Baroness, Lady Burton of Coventry, has said. I feel that we have gone a bit far with this policing of people going aboard aircraft. For instance, in a small airport like Wick, local passengers who are perfectly well known are frisked by no less than three security people. Practically every passenger who boards and leaves the aircraft in Wick is known to the security people personally, yet they are frisked. If one travels on Loganair, not on British Airways, nobody is frisked.

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What I should like to be sure about is that there is to be some control over cost. I met my right honourable friend Mr. Grimond one day in Aberdeen airport and, as we went through with our arms in the air, he said to me: "They will have a career structure in this next". Indeed, there is now going to be a career structure by Statute. What safeguards are the travelling public going to have against Parkinson's Law coming into effect and building up this career structure, so that every person who frisks one has to have a person standing by in case one attacks them, or something of this sort? If we are going to make this an obligation, we must have safeguards. I am not at all happy that we have sufficient safeguards.
Like the noble Baroness, I deplore greatly that we are making a permanent feature of this kind of situation in our airports. I have always thought that it would be much better handled by the police. If we gave the same amount of money to the police force and asked them to look out for terrorists, I feel that the money would be much better spent than as it is being spent.
Lord FORBES: My Lords, I think that we are all in favour of security being maintained at all costs. But the point is where is this going to stop? What happens if, say, there is a risk in this House? Is every Member going to be taxed so that the risk can be minimised? Where is it going to stop, my Lords?
Lord TREFGARNE: My Lords, when I saw this regulation on the Order Paper and realised that it fell to me to speak from this Box tonight I must confess to a certain apprehension, recalling the furore which arose during the Committee stage on this Bill. I must also confess that that was probably the most uncomfortable day of my career in your Lordships' House. I am happy to see that most of the noble Lords who took part in the debates on the Committee stage are not here tonight and perhaps I shall be spared any more discomfort. Be that as it may, I think that the regulations we have now before us in draft form, having regard to the fact that the Bill is now an Act, and not wishing to re-open those arguments, are as good as could be expected.
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I do not think that I am revealing any confidences when I say that the contents of the regulations reflect in considerable measure the intent of Amendments tabled by my honourable and right honourable friends in another place, and which were subsequently withdrawn at the behest of the Government on the undertaking that the content of the Amendments would be contained in the regulations; and here they are. I am happy to see that, for example, small aircraft are to be exempted, and a most important safeguard is the one where the first 2,000 passengers to pass through an airport are not to he charged—at least, are not to be charged by the Secretary of State—although presumably airlines will raise the standard charge against all passengers. The purpose of this, as my honourable friend Mr. Tebbit explained during the Standing Committee in another place, was to provide some of the smaller airports with a buffer to provide against bad debts and other unforeseen costs—for example, administrative costs—which may fall upon them by virtue of the Act and these regulations.
I do not think that it is appropriate to re-open all the arguments which were deployed at the time of the Second Reading and at the Committee stage. I think that it is sufficient for me to say that we would not wish to oppose these regulations and hope that the implementation of them will be smooth and perhaps will not contain all the disasters and pitfalls which some noble Lords, and indeed the noble Baroness, Lady Burton of Coventry, have foreseen for them.
7.16 p.m.
Baroness STEDMAN: My Lords, like the noble Lord, Lord Trefgarne, I hope that all the dire things that noble Lords and my noble friend Lady Burton cf Coventry have thought of are not going to happen as the result of these regulations. I have inherited this matter; I did not suffer the same traumatic experience as the noble Lord, Lord Trefgarne, in that I did not have to pilot the Bill through this House. The fact remains that the Bill did go through this House. The content of the regulations were discussed at some length in the House of Commons Standing Committee when they were discussing the Civil Aviation Bill. Representatives from the industry, including airlines and the

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airport authorities, the trade unions, travel agents and all people involved, were in consultation with our officials about the regulations. I would not pretend that we have satisfied them on every point, but certainly the regulations as they now appear before your Lordships in draft form are generally acceptable to the industry as a whole.
I think we have to accept when we get to this stage that the principle has now been accepted by Parliament. We have made in the regulations the exemptions referred to by the noble Lord, Lord Trefgarne. We are carrying on with consultations within the industry. Consultations have been going on with all those people who are concerned with the matter, and even today there has been a further meeting to discuss how these regulations will operate, how we see them operating, and the kind of basis which we think we might have to use in the future.
It is not the intention to chann the basis for the charge at all in 1979 and 1980 and, after much consultation, it will only be reconsidered if it is necessary in the light of experience and in the light of further consultations later this year. I hope that your Lordships will accept the draft regulations as they stand and allow us now to implement this part of the Civil Aviation Act.
On Question, Motion agreed to.
Lord STRABOLGI: My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended front 7.18 p.m. until 8 p.m.]

SCOTLAND BILL
House again in Committee on Clause 20.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 317:
Page 9, line 10, leave out ("If the Assembly has nominated") and insert ("The Assembly shall nominate").
The noble Lord said: With the permission of your Lordships and at the request of my noble friend Lord Gray,
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who regrets very much that he is unable to be here today, I beg to move Amendment No. 317, proposing to replace on Page 9, line 10, the words:
"If the Assembly has nominated"
With the words:
"The Assembly shall nominate".
With this Amendment goes Amendment No. 318, which is to insert the word "and" after the word "Secretary" so that the sentence shall read:
"The Assembly shall nominate one of its members for appointment as First Secretary and that Member shall be so appointed…".
The immediate reaction to the terms of subsection (5), as drafted, is: "Well, what if the Assembly does not nominate anyone as First Secretary?" If it does not—and I think the noble Lord has made this point already—the Secretary of State is to appoint the First Secretary. This is bound to give rise to certain difficulties. How much time will the Secretary of State give the Assembly to decide on a First Secretary? Sometimes the choice may be quite simple: if there is a majority for one Party, the man who has been elected as Leader of the Party will no doubt be proposed to the Assembly and duly nominated on the votes of the majority, with the more or less willing concurrence of the rest.
But what if there is no Party with a clear majority? First, there would have to be meetings between the Parties. There would be the usual squabbles, I have no doubt, not only about policies but also about the distribution of portfolios. It is not unknown for this process, certainly in Continental countries, to continue not merely for days but for weeks. We should like to hear what the Secretary of State would do, or indeed what the Assembly would do, in the meantime.
I hope the noble and learned Lord will be able to clarify the constitutional position of the Secretary of State as well. Presumably he will be able to send for the Member of the new Assembly who, in his opinion, is the most likely to be able to form a Government and to entrust him with that task, if he agrees—and that will happen, as my noble friend Lord Colville of Culross has indicated, where there is no one Party with an absolute majority.
But the person sent for must be a Member of the Assembly: there can be

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none of the nonsense that sometimes happens of calling in a national figure and inviting him to become the First Secretary. He must he a Member of the Assembly. I am sorry the noble Lord, Lord Shinwell, is not in his place, because he will recall that a Prime Minister was defeated in a General Election, at which the Coalition over which he presided obtained a substantial majority—and of course the person who defeated that Prime Minister was the noble Lord, Lord Shinwell. The Prime Minister continued in Office, not being a Member, and in due course he was elected to Parliament in a by-election; but quite a considerable time elapsed. That could not happen under the rules we have before us: it could not happen to a First Secretary.
Surely the best solution would be to provide firmly for the Assembly to nominate the First Secretary, with no hypothesis about it. That would place the responsibility firmly on the Assembly. It would be most unsatisfactory if the Secretary of State had to decide whom to send for, not only if the person he considered best able to form a Government was of a different political persuasion, but also if he were the Leader of the Secretary of State's own Party in the Assembly at the time, when that Party did not command an absolute majority there. It would be a most embarrassing situation for him and, almost whatever he did, he would be accused of doing the wrong thing.
Finally, is each new Assembly to be required to nominate a First Secretary after each election? These are the questions which have to be explored. But I would suggest that the main point is to put firmly on the Assembly the duty of nominating a First Secretary for appointment by the Secretary of State. I beg to move.
8.6 p.m.
Lord McCLUSKEY: I certainly agree that we should consider Amendments Nos. 317 and 318 together, as the noble Lord suggested in moving the Amendment standing in the name of the noble Lord, Lord Gray. As we have already seen from the clause itself during our earlier consideration of it, the Secretary of State is the one whose duty it is formally to appoint the First Secretary. Furthermore, he must appoint any Member of the
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Assembly nominated by the Assembly for this office: that is under the provision in the clause as it stands. The means of nomination are to be left to the Assembly itself to determine. One would suppose that these would be established very early on in the Assembly's standing orders. In so far as they were not, perhaps at the very beginning, then one would expect that a direction or directions would be given under Clause 7 of the Bill, if necessary.
The reasonable expectation, as I think the noble Lord, Lord Drumalbyn, recognised in moving the Amendment, is that the Assembly will make a nomination; but Clause 20(5) is drafted to guard against the unlikely situation that the Assembly cannot sufficiently agree on a nomination in whatever procedures may be established. Unless there were a provision for a First Secretary to be appointed in such a situation, it would not be possible for a Scottish Executive to be formed because, as your Lordships will appreciate, the First Secretary is appointed and thereafter, upon his advice, the other Members are duly appointed. The resulting situation would be intolerable and the government of Scotland, in so far as it is concerned with devolved matters, would inevitably suffer. In the Government's view, there must be the possibility for the Secretary of State to act in order to resolve the deadlock.
It is accepted—and I do not dispute for one second what the noble Lord has said—that such a situation would be difficult and indeed fraught with the possibility of accusations of one kind or another. One would envisage that the Secretary of State would no doubt need to enter into discussions with all the Parties represented in the Assembly and with any independent Members who happened to be there. He might initially be expected to urge them to reach agreement and to resolve the deadlock themselves. Indeed, I would go further and say he would have to do that, because the Secretary of State, whatever the circumstances, would not himself want to nominate unless he did so in the sure confidence that the Assembly would endorse his nomination.
Lord DRUMALBYN: It would be useful to know whether it is envisaged that the Secretary of State would act rather

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like Her Majesty, in that he would be sending for the leaders of the various Parties, having talks with them and, in a sense, acting almost as an arbiter, if not as a conciliator.
Lord McCLUSKEY: I think that my answer to that must be in the affirmative, because he cannot, as it were, act upon his own judgment of a general situation, and upon his own initiative. What he must do is to select to be First Secretary a person who will command the confidence of the Assembly, because if he does not the Assembly is bound to turn around and nominate someone else, which would be a highly unfortunate situation and one in which the Secretary of State would not want to get himself involved. Therefore, one would expect that if the Assembly itself were not to nominate and agree upon a person, he would go to the utmost in consultation in order to ensure that the person he nominated could command the confidence of the Assembly, if it came to a vote.
If, however, he could not get agreement, it would be necessary, in the interests of the continuing government of Scotland, that he should make the appointment without that. Of course, the Bill as drafted envisages that, if that unlikely situation were to arise, then he could do that. The Amendment would deprive us of that possibility. The First Secretary appointed would, of course, have to be a person who was ready and able to form an Executive, and there would certainly have to be a reasonable likelihood that the Executive would win sufficient support in the Assembly.
The noble Lord who spoke in support of the Amendment said that this kind of thing sometimes takes weeks—and one acknowledges that that is so—and if there were a PR system, with a fairly even distribution of seats among several Parties, one could foresee that one might have in Scotland some echo of situations with which we are familiar on the Continent and elsewhere. But to allow the government to continue, the First Secretary would have to be able to be appointed. No doubt, while the Parties were considering whom they really wanted to support, they would allow that to happen in order to allow the government to continue. But at the end of the day,
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the judgment of the Secretary of State would be tested within the Assembly itself and against Scottish opinion.
Also, may I point out that if it were thought and suggested that the Secretary of State was acting to his own Party's advantage—I do not suppose that that is likely—then he would be accountable to Parliament itself. That point could be raised against him there, and he would have to answer for it in that forum. If one really goes to the extreme and supposes that a Secretary of State, in defiance of a consensus among the Assembly and against its wishes, were to insist upon appointing and re-appointing as First Secretary a person whom the Assembly did not want, then the Assembly has the remedy which we looked at earlier in Clause 3, of dissolving itself by a two-thirds majority, in order to try to resolve the deadlock by once again seeking the views of the electorate.
In a sense, I am sorry to be driven into this territory, because I do not really believe that this is a very true forecast of what will happen. A number of the debates in the course of the Committee have proceeded upon the assumption that we are dealing here with the dark side of the moon. We are not dealing with the dark side of the moon. We are dealing with a politically mature and responsible society in Scotland, and one surely has the confidence to say, and to assert, that these unlikely and fantastic scenarios will not, in fact, develop in Scotland.
Lord MOTTISTONE: If the noble and learned Lord will allow me to intervene, surely that remark makes a negation of all that this and the other House attempt to do. We are seeking to work out what possibilities there might be, in order to try to guard against the ones which might be adverse. It is all very well to say that the Scots are a mature community—of course, they are—but even in the most mature of communities, such as the English, the oddest things happen. We even get Socialist Governments! Who would ever have thought that that was a reasonable thing to happen in this country?
So I suggest to the noble and learned Lord that it would be worth examining this matter, not from the point of view of trying to argue against my noble friend

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but to see whether the Bill as a whole copes adequately with situations of the kind which he presented. I should have thought that that was wiser, if I may put it in that way to the noble and learned Lord, than to try to recast a picture. His guess may he a very good one, but it is really no better than my noble friend's guess. That is the way to tackle this problem.
8.15 p.m.
Lord McCLUSKEY: I am obliged to the noble Lord, because I believe that if he studies the Bill he will see that it provides for all situations. There are two situations. One is that the Assembly agrees to nominate, and the Bill provides for that as does the Amendment. The other one is that the Assembly doesnot agree to nominate, and the Bill provides for that but the Amendment does not. If I may come to the technicality of the two Amendments, they do not ensure that the situation which the noble Lord is afraid of will always be avoided. These Amendments would put the Assembly under a duty, as I think he recognises and indeed expresses, to make a nomination. But they could not ensure that a nomination was, in fact, made.
I have to ask a question of the noble Lord who has spoken in support of the Amendment. How is the duty, which he puts into his Amendment No. 317, to be enforced against the Assembly? No doubt he will give me an answer to that, but as I read the Amendment, if it were put into the Bill, the Assembly would be under a duty but there would be no sanction to enable that duty to he enforced. The Amendment would make impossible any resolution of the kind of deadlock that we are talking about. The Bill makes that resolution possible. For that reason, I support the Bill and ask your Lordships not to support the Amendment.
Viscount COLVILLE of CULROSS: The noble and learned Lord, Lord McCluskey, has now spelled out, from the point of view of the appointment of the First Secretary, the converse of what we were talking about before we adjourned, in relation to the dismissal of the First Secretary. As it is at present drawn, the Bill must, in order to be internally consistent, provide for the Secretary of State to do what in the ultimate the noble
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and learned Lord has said; that is, to take a decision which the Assembly has been unable to take. Presumably, by the same token, at the other end of the conundrum, it will be able to dismiss a First Secretary, if the Assembly has got itself into a position where it is not happy with the one that it has, but is equally unable to nominate another one.
Does the noble and learned Lord tie this to the electoral system that was originally in the Bill, or is it relevant to the system of election which this Committee has put into the Bill, or does it not matter? I wonder how the Government's mind is working on this matter. We have reached this stage of the Committee on the Bill, and we are talking about an Assembly which at the moment, as a result of my noble friend's Amendment, is to be elected by proportional representation, and one might envisage that the result would be that the Party strengths were nothing like as clear-cut, and the possibilities of majorities were not so clear, as they might otherwise have been.
But do the Government stand by the same provision for the nomination, even if, for the sake of argument, another place reverses that decision? Did they put it in because they thought the electoral system which the Government introduced, which was first-past-the-post, would still lead to a situation where it might be impossible to get a nomination for the First Secretary? We must try to be consistent in this Committee. Do the Government think that there is any distinction to be drawn between the two electoral systems in this respect? I can envisage, if the proportional representation system were to apply, that the Secretary of State might have to take on this invidious duty, perhaps at both the appointment stage and the dismissal stage. It may be right for the Bill to contain it, but I do not know. Does the noble and learned Lord say that the prospects are so precarious that the same thing ought to be provided even if we went back to first-past-the-post? And does he think that that would be better than the system which my noble friend has proposed in this Amendment, which is to leave the Assembly to resolve its own impasse?
The question which the noble and learned Lord asked—how do you enforce this?—is, I think, fairly simply answered.

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I do not know what my noble friend would say, but may I suggest that if the Assembly cannot carry out the statutory duty which this subsection would lay upon it, then it would have to dissolve itself. It then is no longer an Assembly and it no longer has a statutory duty. So there would be no difficulty about that.
We really must be sure that the Government are speaking specifically either about their system, and the various complications that would result from it, or about the proportional representation system, or about both, regardless, because our deliberations upon this clause of the Bill may well or could well stand, regardless of what another place did about the voting system. Therefore the noble and learned Lord would, I think, do all of us a great service if he could be a little more explicit than perhaps he has been already about that part of the problem.
Lord McCLUSKEY: Perhaps it would be for the convenience of the Committee if I were to endeavour to reply at once to the second point in order to give the noble Viscount an opportunity to think about my answer before I turn to the other matter. I was suggesting that the Amendment lays a duty upon the Assembly to nominate. I asked: how does any outside agency enforce that duty? The answer offered to me a moment ago by the noble Viscount is that the answer is quite simple—the Assembly dissolves itself. But the Assembly cannot be forced to dissolve itself, so I believe that in a sense my question remains unanswered. If one says, as the Amendment proposes, that the Assembly shall appoint, there is no outside agency that can compel the performance of that duty. The Assembly can discipline itself either by appointing, in which case it performs its duty, or by dissolving and thus resolving the deadlock. However, I do not believe that the Secretary of State can somehow go to a court or elsewhere and compel the Assembly to appoint.
Viscount COLVILLE of CULROSS: No, I am sure that the Secretary of State cannot go to a court and obtain an interdict to tell the Assembly to appoint. However, a moment or so ago we were discussing the possibility that if we had the Amendment in the form which my noble friend has suggested we might reach the
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situation where there was no Government in Scotland. That would be the pressure. If the Assembly, with the Amendment in its present form, were unable to nominate a First Secretary, the blame would fall upon it if it did not dissolve itself. And that surely would be sufficient, would it not? This is not the kind of "shall" that goes to the courts but the "shall" that goes to the electorate.
Lord McCLUSKEY: I share that sanction or stick with the movers of the Amendment. The sanction of public opinion and the fact that public opinion would compel the Assembly to behave in a responsible fashion is available to us both. But I do not believe that the movers of the Amendment have any other sanction, whereas we do. We have the sanction in the Bill, that at the end of the day the Secretary of State can say, "This is your First Secretary This is a sanction which the movers of the Amendment do not have.
If I may turn to the other point which was raised by the noble Viscount, he asked me whether the Government's view of this matter and the answer that I offered related only to one system or the other. I think it is quite clear that it relates to both. I believe that it will work for both. The only difference is that in one situation the likelihood is that we shall get a much more even distribution of Parties—a one-third, one-third, one-third type of distribution under proportional representation —than under first-past-the-post. But that is only a guess as to the likelihood because, as we saw in February 1974, on a firstpast-the-post system one can have no Party commanding a majority of the seats. Indeed, we are very much in that situation at present.
If, therefore, one had a first-past-the-post system in Scotland for the Assembly elections, one would not necessarily end up with one Party commanding a majority of the seats, although it is probably more likely to be that way than it is under proportional representation. What I believe and what I assert to the Committee is that the difference between these two systems lies in the likelihood of producing a division of the kind I have been speaking about. However, the system works for both, and whatever decision may ultimately be taken about proportional representation, either here

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or in another place, and whatever goes into the Bill about the system of election, I believe that at the end of the day this system will work. Accordingly, I commend it to the Committee on that basis.
8.26 p.m.
Lord MACKIE of BENSHIE: Before the noble and learned Lord rises to reply, may I say that it appears that under proportional representation one does not get the very big shifts in opinion and seats which one may find under the first-past the-post system. The Assembly would understand this very quickly and would be much more likely to resolve their difficulties under proportional representation than they would be under the first-past the-post system. They would realise that they are likely to come back to the same situation. I think it would be of help to them to know that the Secretary of State, who would stand more or less in the position of Her Majesty in this case, could come in to resolve the problem. Nothing helps to make up the minds of politicians more quickly than the knowledge that somebody else may come in and make up their minds for them.
Lord CAMPBELL of CROY: I agree with what the noble Lord, Lord Mackie of Benshie, has just said. To a certain extent all of us are guessing, but if this Assembly is set up in Scotland and is to work in the way in which most of us hope that it will, I think it must be by means of a great deal of consensus. It will not form a Government in the sense of the Government of the country. It will not be a sovereign Assembly. It will form an Executive. Under the system which has now been put into the Bill, I agree that if there is a fairly even result it will probably be easier to find somebody who can command a majority without doubt than it will by the first-past-the-post system. As my noble friends have pointed out, in that kind of situation there will be a period of doubt as to who is the person most likely to be able to command a majority. However, the situation which I hope that the noble and learned Lord will deal with, which was raised by my noble friend Lord Drumalbyn but to which he has not yet given his attention, is where a First Secretary has lost his seat in the Assembly—the Ramsay Macdonald
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situation that was described. As the Bill is drafted, it looks at the moment as if such a person would be completely excluded, even though, from the point of view of continuity of administration and other reasons, it would be generally desirable that he should continue and there was little doubt that he would be able to find another seat. At the moment it looks as though the Bill makes no provision for that situation. I hope that the noble and learned Lord will be able to say something about it.
Lord McCLUSKEY: Yes, I can answer that point directly. The noble Lord is quite right. if the person who was the First Secretary when the Assembly was dissolved was not re-elected, he would no longer be a member of the Assembly and he could not be appointed First Secretary. The Assembly would then have to find a new First Secretary from within its own ranks. It is not for me to speculate, but one has in the past seen instances of a person who has been selected for high office by the Prime Minister of the day failing to be elected to Parliament after a General Election, although the Prime Minister and his Party have been returned, and it has been possible fairly soon to find a means of getting him into Parliament at a by-election.
Viscount COLVILLE of CULROSS: I hesitate to interrupt the noble and learned Lord. I may not have read aright this clause. The person who is nominated certainly must be a Member of the Assembly, but does the person who is appointed by the Secretary of State in default of nomination have to be a Member of the Assembly? I do not think that the Bill says so.
Lord McCLUSKEY: I am trying to put my finger upon the provision where it does say so, although I must confess that I am not instantly succeeding. If I look at Clause 20(4), sub-paragraph (c) says:
"any person appointed under this subsection shall be appointed from among the Members of the Assembly".
That appears to be the answer and perhaps the noble Viscount can tell me whether he is satisfied with it.
Viscount COLVILLE of CULROSS: I will think about it.
Lord CAMPBELL of CROY: The noble and learned Lord referred also to the situation where Ministers had lost their seats in another place but were then returned in a by-election. My point is that they were able to continue in their offices as Ministers; they did not have to resign. It was only if they lost the subsequent by-election that they felt it was right to resign. They could stay in office and in those circumstances it was clearly right that they should do so. There seems to be no provision for this unless the point just raised by my noble friend about that particular situation proves to be right. The noble and learned Lord has made it clear that the Government are making no allowance at all for such a situation.
Lord McCLUSKEY: Let me make it quite clear: the point raised by the noble Viscount is a had one and the Bill makes no provision for the situation which has been described.
Lord DRUMALBYN: I think the trouble we are in over this point is that what has been done, as the saying is, is that we have constructed a model and that model will never fit all the eventualities that will occur. What we must do is to go as far as possible in meeting every possibility that may occur. There is great difficulty in the concept of the Secretary of State appointing a First Secretary, just as I think there would be great difficulty in these modern days if there were an impasse which looked like lasting for some time (and which could happen in this Parliament) in the appointing of a Prime Minister by the Monarch. If that is so, I should have thought a much greater difficulty would result if the First Secretary were appointed, so to speak out of the air by the Secretary of State.
The further difficulty is of course that the person appointed as First Secretary might not be able to come back with a list of Secretaries willing to serve under him in a Government that would command a majority, so the process would begin all over again. I am not quite certain how one "de-appoints" a First Secretary in those circumstances, if he cannot form a Government. The thing is by no means free from difficulty. I was almost hoping that the noble and learned Lord would be able to offer some constructive suggestion —which one is always invited to do by the
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Opposition—and in circumstances like these it is of course not unknown for an interim Commission to be appointed. I believe it can be done in other countries where it is not possible to form a Government. This is probably the lesser of two evils if it looks as though it is going to take a long time for the Assembly to make up its mind as to who to nominate. I put that to the noble and learned Lord for consideration but I do not think we need pursue this point further at the present time.
Viscount COLVILLE of CULROSS: I have thought about it and I seriously suggest to the noble and learned Lord that he might like to look at this again. Perhaps I may just deal with my train of reasoning about the First Secretary not necessarily having any longer to be a Member if he has lost his seat in an election after a dissolution. He would have been appointed in the previous Assembly and, at that stage, under subsection (4)(c), he would have been a Member of that Assembly. Under the second limb of subsection (8), he is not to be treated as ceasing to be a Member on the dissolution if he is again elected at an election following the dissolution. Some people might draw the inference that if he was not re-elected he would then be treated as being no longer a Member of the Assembly, but that does not work if there is no necessity again to appoint him, because, if he was previously appointed, he may remain First Secretary without the requirement to be re-appointed.
I am not sure how this works and I do not know that we can work it out in the Committee at this stage, but I think there may be something to be looked at here. Perhaps the noble and learned Lord, without giving any commitment, would do so.
Lord McCLUSKEY: I merely want to draw the noble Viscount's attention to the wording of subsection (8):
"a person appointed (otherwise than in pursuance of subsection (7) of this Section) to be a Scottish Secretary"—
and that includes the First Secretary—
"shall relinquish his appointment on ceasing to be a Member of the Assembly".
I should have thought that that was the clear answer to the question that the noble Viscount has just asked.
Lord DRUMALBYN: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 308, 318, 99 and 100 not moved.]
8.37 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 101:
Page 9, line 16, at end insert—
(" ( ) If the Assembly resolves that the First Secretary shall cease to hold that office, he shall forthwith tender his resignation, and if it is accepted, the Assembly shall as soon as may be,proceed to nominate one of its members in his place".)
The noble Lord said: The point of the Amendment, if it is accepted, is purely to meet the position regarding Her Majesty's pleasure; in other words, it is a courtesy. There does not seem to be any provision for a change of First Secretary during the four-year term of the Assembly. Should the First Secretary die then presumably the Assembly would nominate a successor under subsection (5). The same would no doubt apply if the First Secretary resigned. It is not unknown for a Prime Minister to resign but Parliament does not nominate his successor. Normally Her Majesty appoints him on the recommendation of the retiring Prime Minister.
But suppose the Party of the First Secretary appointed by the Assembly did not command a majority in the Assembly, and suppose he lost the confidence of the Assembly or of another Party on whose votes he relied for his support, the Assembly might well resolve that he ceased to hold office, but there might not be a two-thirds majority in favour of dissolution, so that the Government would not fall in the way that the Government falls in Parliament. Therefore there could be a change of Government without a dissolution. There would he talks between the Parties and it might be that the same or a different combination of Parties put forward the name of a successor for nomination by the Assembly.
If it was the same combination the Government would probably continue in office under a different First Secretary ho could, if he wished, make changes in his Executive; that is to say, he could
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propose changes in his Executive which the Secretary of State would be obliged to accept. If it is a different combination of Parties the new First Secretary who was nominated by the Assembly and appointed by the Secretary of State might advise the Secretary of State to dismiss the entire Executive and to accept his nominees for reconstitution. I take it that this is all accepted. It is even possible that the Assembly might decline to nominate or be unable to agree on a successor. Remember, this is mid-term. In that case it would be—would it not?—for the Secretary of State to appoint one. Subsection (4) reads:
"Scottish Secretaries shall be appointed by the Secretary of State".
Subsection (2) says:
"Any reference in this Act or in any Act amended by or under this Act to a Scottish Secretary is a reference to the First Secretary or any of the Secretaries of the Scottish Executive".
Then, again, it follows from that that the Secretary of State can and must appoint a First Secretary if the Assembly does not nominate one.
But what if the Secretary of State belongs to a different Party from the Party or Parties able to command a majority in the Assembly? All this seems very difficult, but at least this is clear: the Assembly might well resolve that the First Secretary should cease to hold Office, and if the Assembly does that he could tender his resignation. It is inconceivable that it would be Her Majesty's pleasure that he should nevertheless continue in office. The Amendment requires the Assembly to agree on a successor in order to avoid the grave embarrassment for the Secretary of State of having to appoint one. This Amendment would place the onus of avoiding a breakdown on the Assembly and not on the Secretary of State.
I hope that the noble and learned Lord has seized the point here. This is a midterm situation where for one reason or another the Party balance or something of that kind has been upset, or the First Secretary's own Party has lost confidence in him, or the Party that is in alliance with his own Party has ceased to be in alliance. All these things can happen, and the right situation should be for the Assembly, by a simple majority, to pass a resolution in order not to have to go to the length of a two-thirds majority of all

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people in order to obtain a dissolution. I think I have phrased that incorrectly—by a simple majority should carry a vote for the resignation of the First Secretary and not have to go to the length of a two-thirds majority for a dissolution.
Lord McCLUSKEY: I am not quite clear if I heard the noble Lord correctly when he said he wondered if the noble and learned Lord had seen the point or had seized the point. In fact, I think I see the point and I shall now endeavour to seize it. First, I think if the noble Lord looks more closely at the clause he will find, as I am beginning to find, that the answer lies there. It is a much richer scam than he imagines it to be. This is the new subsection within Clause 20, so I am saying that within Clause 20 the answer is already there. Clause 20(5) provides that
"If the Assembly has nominated one of its members for appointment as First Secretary…",
the Secretary of State must make the appointment. It does not matter when that happens. If it happens mid-term the Assembly, although they have got a First Secretary, Bloggs, can resolve, "We shall now have Smith as the First Secretary".
As we see from subsection (1) the clause makes it plain that there can be only one First Secretary, and if the Assembly resolves, "We shall now have Smith as our First Secretary", he shall be appointed, and of course the Secretary of State has no option but to sack Bloggs. The solution lies within the clause as it stands.
It may be that the standing orders will provide a gentle preliminary to the rather brutal dismissal of the first named First Secretary by nominating a second one, and it may be that they will do it by having within the standing orders some provision for a vote of no confidence in the existing First Secretary. It is for the Assembly to decide how it wants to put the matter, but within the clause it is perfectly possible, in mid-term or at any time, to dismiss the existing First Secretary by simply resolving that someone else shall be the First Secretary. The Secretary of State has no choice; it is mandatory upon him then and there to appoint that person so nominated to be First Secretary. He would have to precede that by removing
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the other First Secretary from office, which, under the provisions of the Bill, he is entitled to do.
The Earl of SELKIRK: Is it in the Bill as it now stands that the Assembly can dismiss the First Secretary at any time? I may be wrong but I have not noticed it.
Lord McCLUSKEY: It does not say that the Assembly can dismiss the First Secretary, but it does say that if the Assembly has nominated one of its members for appointment as First Secretary that Member shall be so appointed. So on Tuesday we have Mr. A who is First Secretary and on Wednesday the Assembly, being dissatisfied with his performance, says, "We shall have Mr. B." So they nominate him and the Secretary of State has no option under subsection (5) but to say that it shall be Mr. B. As we see from subsection (1),
"There shall be a Scottish Executive one of whose members shall be known as the First Secretary…".
There is only one stool on which the First Secretary may sit. He is nominated by the Secretary of State in pursuance of such a resolution and accordingly the Secretary of State must first sack the original incumbent. That is the scheme; it works, and I am satisfied with it.
Lord DRUMALBYN: This is certainly not the way anyone would read it. Inevitably if the Assembly has nominated one of its Members as First Secretary and wants to nominate another or a different Member we are going to have two First Secretaries at the same time. If this is what the noble and learned Lord intends this to mean it is a most extraordinary way of drafting it. I do not think anyone would have interpreted it that way. It is a fairyland way.
Lord McCLUSKEY: Let me make it quite plain. We are not trying to spoon-feed the Assembly as to how it is going to run its everyday affairs. We are providing here a scheme that will work. I have already explained it twice. It may be that because of the lateness of the hour I am not making myself clear, but I hope that on consideration of the clause as it stands, and not coming to it with any fixed notion that it will not work, noble Lords in the Committee will see that it does work.

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The other provision to which I should have drawn attention—although we have already looked at it several times—is subsection (6):
"A Scottish Secretary shall hold office at Her Majesty's pleasure …".
That, of course, includes the First Secretary. If the resolution of the Assembly is that Mr. B is to be appointed First Secretary and if, as I say under subsection (5) the Secretary of State has no option but so to appoint him, plainly as a necessary preliminary he must employ his power under subsection (6) and remove from office the present incumbent. It may come as a surprise to the noble Lord but it is there, and I ask him to consider it and in the light of that consideration not to pursue his Amendment, which is unnecessary.
The Earl of SELKIRK: It is one thing to turn out a Prime Minister but it is another thing to choose another Prime Minister. Those are two separate resolutions. The point I am really making on this—and I think we are all making the point—is whether you will get a deadlocked Parliament. There is a curious position—you cannot dissolve Parliament unless two-thirds of the people want it to be dissolved. That means they are locked in. Neither the Secretary of State nor anybody else can do it. They can turn out their First Secretary and there they are stuck in the Parliament. They have no Government and they cannot have a dissolution; they cannot do anything. I do not want to pursue the point but it is one that worries me just a little. They cannot have the solution and nobody can impose a solution on them. I only put this one point because it worries me whether the Government might be brought to a complete standstill.
Lord DRUMALBYN: Naturally. I accept the noble Lord's explanation that how the Assembly is to dismiss the First Secretary is simply by appointing another one in his place. The trouble about the drafting of this whole clause is that the draftsman has been so nice that he dare not mention the word "dismissal". It would be so easy if we simply said "appoint or dismiss". My noble friend is quite right; it would have made the thing crystal clear, instead of this very neat sleight of hand.
Lord McCLUSKEY: Before the noble Lord withdraws his Amendment, as I am sure he is going to, if we were to put in what he proposes we should find that the Assembly would resolve that the First Secretary should cease to hold that office. I presume that the Secretary of State would follow that instruction from the Assembly and sack him. Then what? We end up with no First Secretary. So the logic of the Bill is compelling. When the Assembly is tired of its existing First Secretary let it produce another one before it is foolish enough to pull the rug out from under him. That is the answer, and, as I say, it works.
Lord DRUMALBYN: I still think that my own subsection would work better. Nevertheless, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.51 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 319:
Page 9, leave out line 17 and insert ("A person").
The noble Lord said: This is an Amendment over which I need not take much time. This is one of those Amendments which my noble friend Lord Gray is so ingenious in devising. I do not know that I can do justice to it, because it is an ingenious one. As I understand it, as the subsection is drafted a person would have to be a Scottish Secretary, that is a Member of the Assembly, before he could be appointed to perform the functions of a Law Officer. The exact words are:
"to perform functions corresponding to functions performed by a Law Officer of the Crown".
Lord McCLUSKEY: I am sorry to interrupt the noble Lord so soon. Did I understand him to say that a person would have to be a Member of the Assembly before he could be so appointed? —because that is plainly not so. The whole point of subsection (7) is that he does not have to be a Member of the Assembly in order to be appointed a Law Officer. That appears from subsection (4), which begins with the words "subject to subsection (7)". Then subsection (7) says he may be so appointed notwithstanding that he is not a Member of the Assembly.
Lord DRUMALBYN: I quite agree with that. I think my noble friend is trying to draft it more intelligently. As the noble and learned Lord says, quite rightly, subject to subsection (4) this is so. It starts with the words "A Scottish Secretary or assistant to a Scottish Secretary". It reads:
"A Scottish Secretary or assistant to a Scottish Secretary who is appointed to perform functions corresponding to functions performed by a Law Officer of the Crown may … be so appointed notwithstanding that he is not a member of the Assembly, …".
My noble friend is inserting "A person" to make it a very much simpler and a much more straightforward sentence:
"A person who is appointed to perform functions corresponding to functions performed by a Law Officer of the Crown may … be appointed a Scottish Secretary or assistant to a Scottish Secretary …"
and so forth, and then can
"take part in the proceedings of the Assembly but shall not vote".
This is a very much more elegant way of drafting the subsection. I beg to move.
8.55 p.m.
Lord McCLUSKEY: It may be more elegant; it is not for me to judge. What I am satisfied about is, first of all, that the proposed Amendment does not change anything, apart from the elegance. Secondly, the elegance of this particular language does not really matter at the end of the day. What matters is, first of all, that it should work, and, secondly, that it should be publicly understood. I should have thought it would be very well publicly understood that the Law Officer is not necessarily a Member of the Assembly, albeit that he is entitled to take part in the proceedings.
Lord DRUMALBYN: If the noble Lord will allow me, I would make this point. I am sure he would agree that it is much better that a clause should be self-contained and should not be read by reference to such-and-such, if that can possibly be avoided.
Lord McCLUSKEY: Let me suppose that I am in agreement about that; I do not want to argue about that at this time of night. Does the noble Lord really suggest that we should amend the Bill in this sense? What I would say to the Committee is that there are Amendments
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that have been made and there are more Amendments that are bound to be made. It is a greaty pity if we send back an unnecessary Amendment, albeit elegant beyond belief, and thus give ill-disposed persons an opportunity to discuss unnecessary Amendments and so to prolong the proceedings in the other place. I see the noble Lord, Lord Campbell of Croy, frowning. We must make Amendments to this Bill; some have been made and others will be made. It is surely not worth while moving into the Bill Amendments which are only for the purpose of achieving a supposed improvement in the language.
8.58 p.m.
Lord CAMPBELL of CROY: If I may come in on that, the noble and learned Lord referred,I think, to the probability of ill-disposed persons in another place pouncing on what is purely a drafting Amendment, and I suppose he meant wasting time. In another place they have had a guillotine placed upon the Bill. They have been able, under the guillotine, to discuss only certain portions of this Bill. I am sure that the Amendments which we do send to another place—some have already been made to this Bill—can be divided into those which are purely drafting (which this one would be, though a great improvement to the wording) and those which are Amendments of substance. To say that an improvement in drafting, which on examination is agreed to be an improvement, should not be sent to another place because ill-disposed persons would seize upon it and waste time, is a misjudgment of the proceedings that we expect to take place in another place when our Amendments go there.
I sincerely hope that they will have time in another place to consider our Amendments of substance, and that they will welcome changes that have been made to improve the drafting. Certainly this Bill has every evidence of ambiguity in its drafting. They will welcome the opportunity which we have had to make such changes, as with much of the Bill they have not had the opportunity to suggest changes in drafting. So I take issue with what the noble and learned Lord has said about that.
I should also like to record the success which my noble friend Lord Gray has had; indeed Lord Drumalbyn has had

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many successes of his own. Lord Gray has had a number of successes in pointing out drafting improvements, and indeed pointing out where there have been drafting lapses. He did that in regard to a Bill the other day. I would ask the Government to take very seriously the suggestion that he has made, particularly as the noble Lord has not found any fault in it; he has simply said it is not necessary. If it is going to help in the clarity of the Bill and, as I think has been said, the general understanding of it, I do not think the noble and learned Lord should cast this aside quite in the way that he has.
Lord HYLTON: Surely it is a distinct advantage if the drafting of one small subsection of this complex Bill is improved so that the numerous laymen who have to read it and try to understand it may be somewhat eased and facilitated in their task? I am surprised that the Government should make such heavy weather over a drafting Amendment.
Lord MOTTISTONE: I hate to take issue with my noble friends because normally I do so only when we are discussing wild creatures, such as otters, deer and so on. However, it seems to me that this is not a drafting Amendment. As I see it, if the Amendment of my noble friend is made a person can be performing functions corresponding to those of a Law Officer of the Crown without necessarily being a Scottish Secretary. However, the Bill, albeit it is written in a complicated way, ensures that the person who is performing that function is a Scottish Secretary. The Amendment would change the sense of the Bill. I do not argue about whether the sense is right, but I do not think that this is just a drafting Amendment.
Lord McCLUSKEY: I should like to intervene at this stage. I answered the point that was raised by the noble Lord, Lord Drumalbyn, in supporting his Amendment. However, the noble Lord, Lord Mottistone, is absolutely right: this is not just a drafting Amendment. It has the effect that the person need not, if the Amendment were moved into the Bill, be a Scottish Secretary or an assistant. As a result he would not, if he were not such a Scottish Secretary, be able effectively to carry out his duties, because he would
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not be clothed with the powers which are given to Scottish Secretaries under Clause 20(3). Accordingly, there are functions which one would expect the Law Officer to exercise and he would not have them unless he were a Scottish Secretary. So this would be much more than a drafting Amendment.
I am sorry to appear to be stubborn in relation to the drafting. I was not conceding that the drafting of the Amendment was better than the drafting in the Bill. In fact, I am satisfied, and I am so advised by the draftsman, that it is not. The logic of the thing is that, first of all, we deal in subsection (4) with Scottish Secretaries, having dealt in Clause 20(3) with the powers conferred upon them. Then, subsection (7) speaks about Scottish Secretaries and not about persons. Therefore, I should defend the drafting if I had to do so.
I should point out, with the concurrence of the noble Lord, Lord Mottistone, that this is not simply a drafting Amendment. I hope that the noble Lord, Lord Campbell of Croy, is right in his optimistic view about the responsible treatment that all these Amendments will receive when they go to another place.
Baroness HORNSBY-SMITH: Would not the next Amendment, which inserts the words:
"appointed a Scottish Secretary or assistant to a Scottish Secretary",
make plain the omission which the noble Lord, Lord Mottistone, thinks is removed by the Amendment?
Lord McCLUSKEY: Not entirely. It would not oblige the person appointed to perform the functions corresponding to those of a Law Officer to be a Scottish Secretary. Under the clause as it stands he cannot be made a Law Officer until he is a Scottish Secretary. Under the Amendment a person can be appointed a Law Officer and he is permitted to be made a Scottish Secretary or an assistant, but he does not have to be.
Lord BALERNO: In the event of the First Secretary losing his seat at an election it would be possible, would it not, either for him personally to appoint someone, or for others to appoint him, to perform the functions corresponding to the functions performed by a Law Officer of the Crown?

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If that was so, he would be entitled to be present at the Assembly, to lead the Assembly, but not to vote.
Lord DRUMALBYN: I am appalled at what the noble and learned Lord has said. It seems to me that it is absolutely illogical. He has made out of this matter something that is now intolerable. He is saying that a man must first be appointed as Scottish Secretary before he is appointed to carry out these legal functions. That seems a total nonsense. We want somebody who is capable of carrying out the legal functions to be appointed as Scottish Secretary.
I assure the noble and learned Lord that I know how Governments become so accustomed to seeing texts and know what they mean. That is all right, but the Government have really got this wrong. It is mainly a drafting Amendment, but my noble friend Lord Gray said that he saw in it a point of substance. I took it to be a drafting Amendment, because I thought that it infinitely improved the clause. However, my noble friend saw that point of substance that I have now mentioned. Somebody has talked about putting the cart before the horse. In this case it is certainly putting the cart before the horse. A man becomes a Secretary because he is appointed to carry out these functions and he ranks as a Secretary. That is the truth of the matter. He is not appointed as a Scottish Secretary and then appointed to carry out the legal functions.
Lord CAMPBELL of CROY: I should like to get the Government's view on what they are aiming at here because I think that we had all assumed, until this point had arisen, that what the Government were trying to achieve was what happens in relation to Law Officers for Scotland—that is to say, that someone who is completely suitable to carry out the task can be appointed even though he is not a Member of either House of Parliament. That is something which has worked well.
I remember the days whets both the Scottish Law Officers were Members of the other place and it was always possible for that to be achieved. Then there came a time when it was not possible. However, the situation is covered, and I think that the noble and learned Lord himself carried out the tasks of Solicitor-General for
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Scotland without being a Member of either House. We had understood that the same principle was being applied in the case of the Assembly. However, that would mean, as my noble friend has said, that the person could be appointed although he was not a Member of the Assembly and although he was not a Scottish Secretary.
Therefore, at this stage I would ask the Government to go back to the first principle and tell us whether we are right in assuming that the aim of this subsection is to try to reproduce for the Scottish Assembly the same situation where a person who is legally and otherwise qualified to carry out this task can be appointed even though he is not a Scottish Secretary or not even a Member of the Assembly.
Viscount THURSO: Perhaps I may put it to the noble and learned Lord, Lord McCluskey, that, by his own test of readily understanding what the subsection means, it has been shown tonight to have failed in the sense that various interpretations have been put upon it, although probably not all of them were correct. However, we are, in fact, apparently groping for the real meaning within the subsection. I would invite the noble and learned Lord to have another look at the drafting because, as we have gone along, it has seemed to me that the meaning has changed from time to time as different nuances have been put upon the subsection.
I take it from our discussions tonight that what has really happened is that we have shown up a weakness in drafting. I am sure that, if the noble and learned Lord were to look at it, he could probably pull the drafting together for another stage.
Lord DRUMALBYN: I should like to add one point because the noble and learned Lord rather astonished me earlier by saying that an earlier part of the Bill, which referred to "a Scottish Secretary", meant "Any Scottish Secretary" and that the jobs were interchangeable. Surely the job of the Scottish Secretary dealing with legal matters is not interchangeable with that of other Scottish Secretaries.
I am not at all certain that we have not fallen on something much more fundamental and that the person performing

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functions corresponding to those of the Lord Advocate should be called by a different name, and not be a Scottish Secretary at all. That would make the matter clear. If the jobs really are interchangeable, then it is quite wrong for the person performing these legal functions to be called a Scottish Secretary.
Lord McCLUSKEY: Perhaps I may briefly answer the points raised by the noble Lord, Lord Campbell of Croy. The intention was not to reproduce the situation at Westminster because, as we see from subsection (7), the Law Officer of the Crown may, notwithstanding that he is not a Member of the Assembly, take part in the proceedings of the Assembly, though he cannot vote. That, of course, is not a reflection of anything that happens in the Westminster Parliament. Indeed, when a Scottish Law Officer is not a Member of either House, he has no voice in either House. Accordingly, this is not a reproduction of the Westminster situation.
In considering this matter I had taken the Amendment at its face value because the Amendment itself envisages that the Law Officer, or the person performing Law Officer functions, will or may be a Scottish Secretary. I did not envisage the last point which the noble Lord, Lord Drumalbyn, raised that perhaps there is a much deeper matter and that he should not be a Scottish Secretary at all.
I shall certainly take steps to ensure that tonight's debate on this matter is drawn to the attention of the draftsman; it is only right that I should do so. All the points that have been made will be put before him. In the light of that, he will be asked to consider the wording that he has proposed.
Lord CAMPBELL of CROY: This has been a very valuable debate because it has raised these matters, which certainly need to be examined. The noble and learned Lord has indicated a difference between what is proposed here and the way in which Scottish Law Officers operate in the Westminster Parliament. None the less, as the clause is drafted, it looks as though it is being modelled as closely as possible on what does happen at Westminster. This particular provision
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about not voting, in fact, follows a procedure in another place of which noble Lords may not be aware; a convention operates there that when one of the Law Officers for Scotland is a Member of another place he can attend any Scottish Committee there, even though he is not a Member, and take part in the proceedings but not vote. Therefore, this looked as though it was trying to follow as closely as possible a procedure which exists in another place. That is what led me to think that the Government were trying, so far as possible, to produce the same kind of person.
I would quickly add that I think the system has worked well and, therefore, I am not against trying to copy it as closely as possible. But it is quite clear that the drafting has fallen down and that this must be looked at again. I am sure that the Committee will be grateful to my noble friend Lord Gray and to Lord Drumalbyn, who has raised this matter in his absence.
Lord DRUMALBYN: I am very grateful to the noble and learned Lord, Lord McCluskey, for the assurance that he has given. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 320 not moved.]
9.13 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 321:
Page 9, leave out from beginning of line 28 to ("a") in line 29 and insert ("such a person shall not be treated as having ceased to be").
The noble Lord said: This is another Amendment standing in the name of my noble friend Lord Gray. I am not sure that I am as grateful to him as is my noble friend, Lord Campbell of Croy. One is never quite certain that one has understood the points in question. However, we seem to have gone a bit further in the last Amendment than even my noble friend Lord Gray thought.
This Amendment reads:
"Page 9, leave out from beginning of line 28 to ("a") in line 29 and insert ("such a person shall not be treated as having ceased to be")".
That is rather misleading as it stands so I shall read the whole of the proposed subsection. It would read:
"A person appointed (otherwise than in pursuance of subsection (7) of this section)"—

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with which we have just dealt—
"to be a Scottish Secretary or an assistant to a Scottish Secretary shall relinquish his appointment on ceasing to he a member of the Assembly; but for this purpose such a person shall not be treated as having ceased to be a member on the dissolution of the Assembly if he is again elected at the election following the dissolution or he is removed from office."
That is how it would read if I may take Amendment No. 321 together with Amendment No. 322.
The points my noble friend had in mind were, first, is the subsection as drafted concerned only with Scottish Secretaries and their pay and pensions, or does the second part of it refer—and I do not think it does—to members in general? If it does not refer to members in general, would it not be better to refer to "such a person" rather than "a member of the Assembly"? It would make it more intelligible. There seems to be a confusion between the two here. Secondly, if the Government have only pay and pensions in mind, ought not "ceasing to be" be amended to "having ceased" because, after all, the matters can only be considered retrospectively if and when the Secretary, or assistant, has been re-elected.
There is a further question. In the practice of the United Kingdom Administration, is it not the case that all Members of the Government are considered to have placed their offices at the disposal of the Prime Minister even though, if I remember rightly, a Minister continues to receive his pay in the office he is holding until relieved of his office, or transferred to another office, whether more highly or more lowly paid? Is it the intention that the Scottish Secretaries and assistants should be treated in the same way as Ministers in the United Kingdom Parliament in this respect? If so, the words in the second Amendment, "or he is removed from office", should be added.
Is there any other purpose in the subsection that my noble friend and I have not detected? For example, is it intended that the Scottish Secretaries and assistants should continue in office until replaced? The Party or Parties providing the Government before the election might not be the same as those providing the Government after the election and, as I have said, it might take some time to form a new Administration. This might mean
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an awkward time while the previous Administration continued in office until a new one was appointed. On the other hand, is it intended merely that in that case the Secretaries and assistants should continue to exercise their functions until the First Secretary tenders his resignation and that of his colleagues? I beg to move.
9.17 p.m.
Lord McCLUSKEY: In looking at Amendment No. 321 along with Amendment No. 322, I had regarded them as being a couple of Amendments designed to improve the drafting. It was my intention to say in this regard, and I shall say it, that I shall seek the draftsman's advice as to whether or not this is an improvement. I know the noble Lord, Lord Gray, well enough to recognise that he is assiduous and skilful in detecting flaws and being able to suggest improvements. I propose to ask the draftsman's advice in the light of these proposals and of what has been said.
To answer the questions that I have been asked, this subsection is not just concerned with pay and pensions, but is concerned with continuity. The noble Lord will recall that we had a debate about continuity when discussing Clause 3. I think that we dealt with these points at that time. The noble Lord said that it would be awkward if there were Secretaries who were not re-elected to the Assembly. Of course, if any Secretaries were reelected to the Assembly, then any one Secretary could perform any of the duties incumbent upon any of them, so there would be no insuperable difficulty unless one got the extraordinary situation that all the persons who were Secretaries at the date of dissolution ceased to be members of the Assembly on the dissolution and none was returned to the Assembly. Then one might get a difficulty. It was with that in mind that I felt it might be advisable to suggest that the draftsman should look at this again. I shall do that.
Lord DRUMALBYN: I am much obliged to the noble and learned Lord and if, when we return to this matter, he by chance still wants to adhere to the present words, perhaps he will say whether the words "a member of the Assembly" really refer to a Member of the Assembly

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who is a Scottish Secretary or an assistant. I leave that with the noble and learned Lord as I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 322 not moved.]
9.21 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 309:
Page 9, line 31, leave out subsection (9).
The noble Lord said: The Amendment also bears the name of my noble friend Lord Harmar-Nicholls. It so happened that we both independently tabled this Amendment; we found we had done so but had not consulted each other beforehand, and we have discussed it since we saw that we had both made the same point. My noble friend cannot be here tonight and I hope to speak for him as well. We certainly need an explanation from the Government of this subsection, which reads:
"A Scottish Secretary may appoint such officers and servants as he may think appropriate for the exercise of such of the powers mentioned in sub section (3) of this section as are for the time being exercised by him".
It is not clear what this exercise is. Is this the way in which departments will be formed? Is this the way in which a section or department dealing with housing or roads or some devolved function will come into existence?
We must also bear in mind that the number of Scottish Secretaries is unknown. We debated this on an earlier Amendment and, as a result of what Government spokesmen have said, we do not know whether we are dealing with five or 15 Scottish Secretaries. In theory, it could be 30, but it will probably be in the area of between five and 15. It seems that the first ones to he appointed could themselves then appoint officers and servants as they think appropriate, apparently without any limit to numbers. We must be told whether the Government have set any limit. I have not seen one elsewhere in the Bill but it may exist, it being a very complex measure.
Secondly, what is to be the status of these people? Will they be civil servants? Are they included in the manpower memorandum at the beginning of the Bill, which says that a net increase of
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750 civil servants in Scotland is forecast? Could some or perhaps all of them be political advisers? That is a fairly recent innovation in this country in Whitehall. Even though I gather there were 40 of them at one stage, a Minister usually has one, perhaps two, and I do not think that, perhaps except for the Prime Minister, there are more than three political advisers working for a Minister. Again, we need to be told whether that category of person is included here.
The intention might be that it could be a mixture of all the categories I have mentioned and perhaps of others as well. We must have some explanation of what is in the Government's mind and whether there are any limiting factors upon what a Scottish Secretary could do in setting up an empire for himself in this way. Once we have been told something of what the clause is supposed to mean, and what the Government have in mind, we can consider whether these officers and servants are to be persons who have sworn some allegiance to the Crown, or have some obligation to Parliament here at Westminster, on what kind of conditions of service they are to be employed, and a whole host of other matters which are simply not touched on here.
I would remind your Lordships that this is quite separate from the staff of the Assembly itself; that is to say, the equivalents of the servants of this House and another place. They are provided for, together with the equivalent of Black Rod, the Serjeant at Arms, and so on, in another part of the Bill. So it is not the servants of the Assembly we are considering. It is either the formation of new Departments, or the formation of some private office, or cabinet, as it is called in the EEC, for a Scottish Secretary. So I would ask for an explanation of what the subsection is supposed to mean, because until we get that we cannot ask the other questions to which we need to know the answers. I beg to move.
Lord DRUMALBYN: May I place some emphasis particularly on the aspect of control here? It so happens that when I was looking up the Ministers of the Crown Act 1975, for other purposes, I found in Schedule 1, paragraph 2, the following:
"The Minister may appoint such secretaries, officers and servants as he may with the consent of the Minister for the Civil Service…

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There seems to be no such qualification in this subsection to which my noble friend is referring.
Baroness STEDMAN: I have the suspicion that we shall come back to this matter again when we reach Clause 62. This Amendment removes the power of a Scottish Secretary to appoint officers and servants to assist him in the exercise of the devolved powers. The Bill itself is creating two new groups of staff: the staff serving the Scottish Secretaries and the Scottish Comptroller and Auditor General; and the staff serving the Scottish Assembly, as the noble Lord, Lord Campbell of Croy, has pointed out.
It is Clause 62 that provides that the officers and the servants appointed by a Scottish Secretary will be members of the Home Civil Service, and that the expenses of maintaining them will be paid out of the Scottish Consolidated Fund. As it stands, the Amendment would remove one of the most essential powers which the Scottish Executive will require when it assumes the general powers and duties for the business devolved upon it; that is, the power to appoint the staff to assist in the exercise of those devolved functions. Without further provision, the provisions in the Bill would be unworkable. I will not go so far as to say that we look upon it as a wrecking Amendment, but we certainly look upon it as a very serious Amendment.
Perhaps noble Lords have in mind that the United Kingdom Government ought to be responsible for providing the staff for the Assembly, but we think that that kind of approach would be quite unwarrantable, and would probably be resented very much by the Scottish Assembly. It is also completely unnecessary.
The noble Lord, Lord Campbell of Croy, raised the question of the political advisers, and asked whether they were included in this. This Bill does not prevent the Scottish Secretaries from appointing special advisers, if they wish to do so. The subsection which this Amendment seeks to delete provides the necessary power of appointment. But since the expenses of these advisers will have to be met from the block fund, a Scottish Secretary will have to convince the administration as a whole that the
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expense is justifiable, and that these advisers are necessary. Such advisers will be in exactly the same position as the special advisers to the United Kingdom Government.
Clause 62 provides that the staff will be members of the Home Civil Service, but the costs of maintaining them will be met from the Scottish Consolidated Fund. The Scottish Executive will then have the discretion to determine its own priorities for expenditure within that block fund. So it is not a carte blanche to appoint as many staff as they want, either as straightforward civil servants, or for their private office, or as political advisers. It seems entirely appropriate that the Scottish Administration should control the numbers and deployment of the staff it considers necessary to carry out all the devolved functions. Surely this is the correct approach. We have the safeguard, so far as the payment is concerned, that they are paid within the block fund, and they have to sort out their priorities within that amount of money.
9.30 p.m.
The Earl of SELKIRK: May I ask the noble Baroness a question? She says that they will be in the Home Civil Service; she does not say that they will be members of the Home Civil Service. As I read Clause 62(1), it says:
"Service as an officer or servant of a Scottish Secretary or of the Scottish Comptroller and Auditor General shall be service in the home civil service …"
That means that they will be seconded to the Home Civil Service; they will not be members of the Home Civil Service. As I understood what the noble Baroness said, it meant that every single one of the 750 people who will be required may be selected by the Chief Secretary and seconded to the Home Civil Service. Is that really what is meant? I thought the intention was that the existing Civil Service would be used to fill the appointments, of which I gather there are 750, or whatever it is, in the Scottish Office. Are we going to get a completely new body of men put in, the only point being that they will be graded and paid by the Home Civil Service, although in the ordinary sense they will not be subjected to the tests or to the competition to which the home civil servant is subjected at the

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present time? Is that what the noble Baroness is saying?
Baroness STEDMAN: No. They will be members of the Home Civil Service. The expenses for maintaining them will be paid out of the Scottish Consolidated Fund. What we do not want is a separate Civil Service for Scotland; but the members of the Home Civil Service who are working on the devolved services in Scotland will have to have exactly the same qualifications as the members of the Home Civil Service working in the other parts of the United Kingdom.
The Earl of SELKIRK: May I say that I am delighted to hear that. But why on earth does the Bill not say so?
The Earl of CROMARTIE: There are no lawyers here at the moment, which is a very good thing, but I should like to say something which I repeat time and time again. Many of these civil servants could be produced if we got away from two-tier local government. The time of many of these people is being wasted, and many of them are being overpaid for what they are doing. If we could get to a single tier local government, except in certain circumstances, as I have tried to explain before, we would have a lot of very satisfactory people available to act as civil servants for the Assembly.
Baroness STEDMAN: I yield to no one in my admiration of the staff employed by the local authorities, both in Scotland and in the rest of Britain; but, quite frankly, that is rather outside this Bill. The question of what should happen to local government staff was decided when we had local government reorganisation, and local government reorganisation is not part of this Scottish Bill.
The Earl of PERTH: I am a little puzzled about subsection (9). Is this the way in which all the people who are to carry out the wishes of the Assembly are to be appointed? Is this a way of saying that, in the case of the whole of what is today St. Andrew's House up in Edinburgh, the troops will be taken over by the Assembly? Because if it is that, then it seems to me that it deserves bettter than being merely subsection (9) of a clause. Perhaps I have misunderstood what it is all about.
Baroness STEDMAN: The civil servants now in St. Andrew's House are members of the Home Civil Service, and if it is agreed that they shall continue working on the devolved functions of the new Scottish Assembly they will remain as members of the Home Civil Service. They will have the right to be appointed to the new Scottish Office, Scottish Assembly or whatever it may be, or they will have the right to apply for other jobs in other parts of the country if they want to. But they are members of the Civil Service, and they will still be members of the Civil Service after the Assembly has been formed.
The Earl of LAUDERDALE: May I ask the noble Baroness a question to elucidate what she has been kind enough to say—and she is always so agreeable and friendly when she explains things, especially when they are things which she does not really want to explain very much and does not like anyway. Are we to understand that, in the future, St. Andrew's House will have two kinds of civil servant, all belonging to the Home Civil Service: one lot who are seconded to serve for the functions which are devolved to the Scottish Assembly and the other lot who are serving, as now, the functions which are not devolved; that they will work side by side, possibly even in the same offices; that they will belong to the same Home Civil Service but there will be two categories of them, some serving the devolved functions and some the non-devolved? Is that right?
Baroness STEDMAN: As we have in Government here, in the United Kingdom. We have some civil servants serving as advisers to Ministers, some in the private offices, some on unspecified duties attached to the responsibilities of the Departments. The same sort of thing will happen in the Assembly. There will be the private offices for the Secretaries of State, presumably, as our Ministers have here. There will be separate departments within the Departments looking after the different functions devolved to them. We are not trying to create two classes of civil servants.
The Earl of LAUDERDALE: I did not make myself absolutely clear. St. Andrew's House, of course, a large

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nothing will destroy that building. I once tried to blow it up but the fuse did not work. St. Andrew's House will continue to be as large as life and will grow larger still probably: but it will house two lots of civil servants in it, pari passit in terms of rank, pay, status, but some will be serving devolved functions and therefore be responsible to the Scottish Executive, with others serving non-devolved functions and therefore responsible directly to the Secretary of State. Is that right?
Baroness STEDMAN: My impression is that the noble Earl has got it right. Everything is not being devolved to the Scottish Assembly and, therefore, there will have to be civil servants looking after things which are the responsibility of Ministers here.
Lord MACKIE of BENSHIE: I hope that I did not understand the noble Earl to be advocating terrorism, even if only to get rid of St. Andrew's House. May I ask the noble Baroness whether it is not the case that in order to give the civil servants confidence it is necessary that they should continue in the Home Civil Service? It might be at some time —I say that it might be—desirable to form a Scottish Civil Service if people wish to serve only in Scotland but, at present, because the Assembly has just been formed, until it has gained experience and confidence has been built up, it is obviously the right thing to have members of the Civil Service serving with the devolved functions at St. Andrew's House in the Home Civil Service, with the same prospects and the same security.
Baroness STEDMAN: Yes. We want to keep one Civil Service at the moment to cover both Scotland and the United Kingdom.
Lord CAMPBELL of CROY: I am sure that that is an admirable aim. It may be difficult to achieve. In putting down this probing Amendment, I have no intention of taking this subsection out of the Bill: something is needed. This is incredibly vague and without an explanation it was not at all clear what it was intended to do. As a result of this debate, the noble Baroness has made it clear that this means the formation of the Depart-
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ments from the beginning and that the people who are to be the officers and servants under subsection (9) are to be the civil servants whose conditions of service we shall be considering under Clause 62 later.
It is not a question of the Scottish Secretaries recruiting, advertising or going out into the highways and by-ways and themselves collecting staffs who they think will serve them loyally and well. They may encourage people to join; but they have got to be members of the Home Civil Service. They must pass the necessary examinations, tests and qualifications in order to become members of the Home Civil Service. They can be on contract or come in under arrangements for periods; but they must fulfil the normal rules governing entry and membership of the Home Civil Service. So it has been made clear, that there could be some special advisers as well if the Assembly so agreed. This is what the noble Baroness has told us.
The only limit appears to be a financial one; that is, there will have to be an allocation from the block grant for the payment of salaries and other expenses of staff—accommodation, et cetera. But we still do not know the number of Scottish Secretaries and, therefore, the number of Departments that are to be formed in this way. The first decision to be taken, apparently, by the Secretary of State following exactly the advice he has been given by the First Secretary about the numbers of Scottish Secretaries is going to be very important because it could lead to the number of departments to be set up and the general structure and shape of the new Executive. So we are dealing with an important subsection. I still criticise it as being exceedingly vague as drafted. We will certainly be having to ask a great many more questions about recruitment and conditions of service.
The question of pay rates and other conditions arises. What the noble Baroness has said—rightly, I think—is that the intention must be that those who are employed as civil servants working for the Executive of the Scottish Assembly should be on the same conditions and pay rates as other members of the Home Civil Service. But there is another point which I should like to raise. This is a new

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form of service within the Civil Service. If a system like this is to work properly, my own feeling is that there should be transferability. I have expressed this opinion before: I hope that when the new system is set up some of those who have worked in St. Andrew's House will go and help the new Executive to get started. They will not all be new.
However—and this is the important point—is that going to be voluntary? There could be persons who say, "When we signed on to be members of the Home Civil Service we were signed on to work for the Westminster Government. Now something quite different has been set up which is not a sovereign Parliament and here we are being asked to go and serve something quite new which we do not want to do". I personally would favour transferability and that there should be a number of experienced civil servants serving in the new Executive. But I should not like to think that they were sent there against their wishes, because it could not have been in their original conditions of service.
Let me take a simple example. The main difference between those who join what used to be called the Foreign Service and is now called the Diplomatic Service again and those who joined the Home Civil Service is that when they start they have to sign completely different conditions of service. Those who joined the Diplomatic Service know that they can be sent at short notice to all kinds of different parts of the world, however inconvenient, even if they have young children and are sent to terrible climates. They can be moved round with perhaps only six months in one place and then a year in another. When they sign on for that they know that that is what they are committed to do.
Those who join the Home Civil Service know that they may be transferred to Newcastle or Glasgow but they are going to stay within the United Kingdom and, on the whole, they can settle down, buy a house and decide where the children are going to school. They can work out a pattern for their lives for a certain number of years ahead.
If I may digress for a moment, this is one of the problems there have been about carrying out one of the recommendations of the "Think Tank" report—that is to
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say, not enough of those in the Home Civil Service who have signed on for those terms are prepared to exchange them and go abroad and have their lives upset with the general upheaval as a result. Clearly, the difference is not as great here. Those who have signed on to be home civil servants and serve the Ministers in the Westminster Government may well decide that service for this new Executive is a different kind of service, and they may not wish to serve the Executive. I hope that they will not be compelled against their will to do so. That is the sort of question I can see coming up.
I am not sure that the noble Baroness fully understood the question put by my noble friend Lord Lauderdale and I should like clarification. He spoke about St. Andrew's House. The position is that the Scottish Office, consisting of five departments, is spread in a number of buildings in Edinburgh, and has been for some time. Also, of course, a new building was opened about three years ago, which is New St. Andrew's House. That is in addition to the old St. Andrew's House. I agree that if I had had anything to do with that building I should not have allowed the skyline to be spoilt, as it has been, by the new St. Andrew's House. There are other parts of Edinburgh which contain sections of the Department of Agriculture and sections of the Scottish Office. But when some of these functions are devolved to the new Executive, I would imagine that there would be a geographical separation; that is to say, those civil servants who were working for the new Executive because the subjects they were on were devolved subjects, would all be in the one building and would be separated from those who are still working for the Secretary of State for Scotland—either working for him as a Minister in his personal capacity, or working for him because they were working on a subject which was reserved and not devolved.
I think that the noble Baroness, in her answer to my noble friend, rather gave the impression that they might still be working in the same corridor in St. Andrew's House. Personally, I think that would cause confusion, and I would hope that they would be separated so that in Edinburgh people would know perfectly well that they would be coming to see somebody who was working for the

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Scottish Executive rather than a section which was working for the Secretary of State for Scotland: they would not be just muddled up in the same corridor in the same building.
I have touched only on some of the matters that arise from this subsection. The subsection is the part of the Bill which enables the departments, if that is the right word for them, of the new Executive to be set up—the civil servants who are to work for the Scottish Secretaries. We have no idea how many there are going to be because we do not know how many Scottish Secretaries there are going to be. We do not know whether there will he one for roads, one for housing, one for local government and so on. There might he 20; there could be six. So that is highly unsatisfactory, and it is explained by the Government by the need for flexibility. I hope that the noble Baroness can say a little more in answer to the points I have raised, particularly the one about geographical separation, before we pass on to another Amendment.
9.48 p.m.
Baroness STEDMAN: I am sure it is the intention that the devolved services, so far as possible, will operate within the one building or the one set of buildings and that they will not be mixed up together; but no firm decision can be taken about that until we have dealt with Schedule 10 and know exactly what functions are to be devolved. So for further clarification it might be better to wait until we have dealt with Schedule 10, and then when we reach Clause 62. There will be transferability, as there is now. People can apply to transfer from department to department and from some department of the present Scottish Office to some of the departments of the new Scottish Secretaries.
So far as voluntary or compulsory transfer is concerned, I think we might leave that until we get to Clause 62 and are looking in more detail at the whole question of the Civil Service. We would certainly hope that many of our experienced Scottish civil servants will be willing, and indeed anxious, to transfer to similar or even better jobs within the Scottish Assembly departments, rather than in those services which are not yet devolved to Scotland. We need a good
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leavening of experience among the more inexperienced ones; but I am sure there will he scope within the new Scottish set-up for those people who have had experience already of running these services now and will help to take over services when they are devolved to the Scottish Assembly.
I am quite sure that it is the intention of the Government, and it will he the intention of all Members of this House, that there should be absolute fairness in the treatment of our civil servants who are at present in Scotland and will remain there, and of any additional ones who will go there. I am sure that we want them to be treated just as fairly as United Kingdom civil servants. There will be an opportunity for transferability. When, after we have finished with Schedule 10, we know what services are being devolved, we shall be able to say a little more about the question of their housing and which buildings they will be in. But I am sure that it is the intention that the two should be separate, so far as they can.
The Earl of LAUDERDALE: I think that the noble Baroness must have made a slip of the tongue and, if so, this will give her an opportunity to correct it. She mentioned just now those functions not yet devolved to Scotland. Are we to conclude from that that, outside the scope of this Bill, it is in the Government's mind to devolve others as well?
Baroness STEDMAN: No.
The Earl of LAUDERDALE: I felt sure that it was a slip of the tongue, but that sets the record straight.
Baroness STEDMAN: I am grateful to the noble Earl. What I was implying was that we have not gone through Schedule 10, which details which services are being devolved.
The Earl of PERTH: I wonder whether I can be helped a little more. I understand that we are setting up a devolved Scottish Civil Service. But what happens when a Scottish Secretary relinquishes his appointment?
Baroness STEDMAN: I should have thought that, as happens in the present set-up here in London, the civil servants who have been appointed would remain

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in post, and only political advisers who have been appointed would go out with their Minister.
The Earl of PERTH: The noble Baroness thinks that that is so, but is it so? This is not entirely clear to me. We are told that a Scottish Secretary may appoint. Subsection (8) of Clause 20 states that:
"a Scottish Secretary shall relinquish his appointment".
What happens when there is no Scottish Secretary, or rather when the Scottish Secretary who has appointed these people has gone? If the noble Baroness is right that there should be continuity, ought we not to have something to that effect in the Bill?
Baroness STEDMAN: I should like to take advice on that and come back to the noble Earl, if I may. But I am reasonably certain in my own mind that the same procedure will apply in Scotland as applies here, and that the civil servants will stay on in their jobs.
The Earl of PERTH: I am very grateful. I am sure that that is what should happen, but I am not certain that it is in the Bill as drafted.
Lord BALERNO: May I have it confirmed that there is great advantage in having one Civil Service, and a very quiet transfer of persons without, as it were, offices? That seems to me likely to avoid the dreadful expenditure of money that arose with our recent local government reorganisation, when the new regions had a free-for-all and advertised vacant posts. In some cases, local government officers were re-employed at salaries fully 50 per cent. above what they were getting previously. A state of affairs like that is most unlikely to be repeated if we maintain one Civil Service.
Baroness STEDMAN: That is right.
The Earl of SELKIRK: This clause is not satisfactory as it stands. If the noble Baroness really means that the bulk of the staff in Scotland under the Secretariat is to be composed of home and foreign civil servants, then there ought to be something saying that, and this should be conducted in consultation with the Minister for the
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Civil Service. There is no word on that at all. I see advertisements going up in the Home Office, the Foreign Office and the Ministry of Defence, saying "Come to Scotland and you will have a good job". Is this intended or not? I cannot believe that it is, but something should be inserted here. The subsection is written in a most casual way.
Baroness STEDMAN: I assure the noble Earl that it is not intended to be casual. The procedure will be the same as at present. The whole of the Civil Service will be trawled—I think that that is the correct expression—by advertising the jobs that are going, and anyone who has the appropriate qualifications will be able to apply for them. There will be transferability between Departments. If some? one is in Defence and wants to apply for a job in another Department, he will be able to do so, provided that he has the right qualifications to fill the new job. I am sorry the noble Lord does not think that we are clear about it.
The Earl of SELKIRK: The Bill says nothing about that at all. I must make this point. The imagination and experience of the noble Baroness are absolutely first class, but they have nothing whatever to do with the Bill. We really do want something. May I ask the noble Baroness to take this home with her?
Baroness STEDMAN: Yes, I will.
9.55 p.m.
Lord CAMPBELL of CROY: The one thing that we are agreed about is that these innocent looking four lines in the Bill have an immense amount in them, because if the Bill is enacted in its present form they will cause the departments of the new Executive to be set up. We suspected that that might be the case, but only by putting down this Amendment and giving the Government notice that we needed an explanation did we discover that this was so.
I believe that my noble friend Lord Drumalbyn hit one nail on the head by drawing attention to the fact that there is no mention of a Civil Service Department or a Minister for the Civil Service. Earlier today we had with us the noble Lord, Lord Croham, but he has not yet made his maiden speech so I know that he

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cannot intervene on this point. However, he has just joined your Lordships' House after having been the head of the Civil Service.
My impression is that anybody who has served in a high position in the Civil Service and been responsible for staff there would expect this kind of operation to be carried out, as my noble friend Lord Selkirk has said, by a department—perhaps by the Civil Service Department working with the Treasury. But the way in which this subsection is worded makes it look as if the first appointed Scottish Secretaries, although there is no reason why they should have had any experience at all of such matters, can just go forth to recruit and appoint people, provided, as we are told by the noble Baroness, that they are members of the Home Civil Service or can qualify to become members of that Service, even if only on a contract or temporary basis.
I must draw attention to this, because it is a major operation. "Trawling" is a term with which I am familiar, but trawling usually means looking for one or two persons. For example, it may be necessary to have a principal press and information officer in a certain department. A trawl is then carried out in Whitehall to find out whether somebody can be spared or is eligible for promotion to that job. However, the word "trawl" cannot be used in this case, because this is establishing a new Executive—not headhunting which is equivalent to trawling. As the members of the new Scottish Secretaries' departments must all be members of the Home Civil Service, considerable restrictions are placed upon who they can be.
My noble friend Lord Cromartie pointed out, as I did the other day, that it could well be that there will have to be a reduction of local government in Scotland. I am one of those who think that if a new Assembly comes into existence there must be a change in the two-tier system. Although local government officers are at present on a completely different basis, none the less I am sure that in their ranks there are persons who could qualify to become civil servants if they wanted to do so in order to work for the new Assembly. Therefore, in a rationalisation of that kind there would probably be available personnel who, if they wanted
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to do so, could be new recruits to the Home Civil Service for this purpose.
My noble friend Lord Balerno referred to something which the noble Lord, Lord Mackie of Benshie, and I were discussing earlier today: that after the reform of local government had been agreed and it was actually carried out, and after I had made arrangements to try to restrict the recruitment, somehow, behind the scenes, when Ministers of a Government which had just come into Office were concentrating on other matters they managed to build some empires which some of us thought were too big —and certainly some new pay scales, too.
The noble Earl, Lord Perth, has voiced expressions of surprise which certainly represented what many of us felt on looking at this clause for the first time. It was not at all clear what was intended, and now that we have been given some explanation it simply raises a huge range of further questions. The noble Baroness said that to take this in a sensible sequence we ought to discuss Schedule 10, which cannot fail to be a long discussion because it is about 20 pages long and it tries to divide the subjects to be devolved from those which are not to be devolved; and we ought to go through that before we consider again the membership of the Civil Service.
I would simply register at this point that I am very concerned that in the Bill this is not prescribed as the major operation which it ought to be. It looks as though it is left to very newly-appointed Scottish Secretaries. We do not know how many they are to be, because the numbers are not indicated and the Government have given no indication of what they think are the right numbers. Therefore, when the first Executive is being established it will be very important that the First Secretary and the Secretary of State of the day are really in agreement about how many Scottish Secretaries there should be, and how many departments should be set up. Changes can be made later but that will establish the pattern for the manning of the Executive and the number of departments and whether it will be a top heavy bureaucracy or whether it will be streamlined and, we hope, efficient.
So what this Amendment has done is to enable the Government to give a preliminary explanation and has enabled

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us to point out to the Government the other questions which arise from this matter, in the hope that they may be armed and ready to deal with these
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points as they arise later in the Bill. At this moment I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.3 p.m.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 102:
Page 9, line 41, leave out ("a Minister of the Crown") and insert (" the Secretary of State").
The noble Earl said: Throughout this Bill there have been various references to "a Minister of the Crown" and he is a quite important chap, he has a great variety of powers. I will not go into them all but he can give notice, he can specify, he can override the Scots Secretary and he can even amend Acts of Parliament, subject to certain specifications. I wanted to know what a Minister of the Crown is and, quite naturally, I turned to the Act of 1975, which was called the Ministers of the Crown Act, hut it is totally unhelpful. All it says is that a Minister of the Crown is a holder of office in Her Majesty's Government in the United Kingdom. I do not know how many people there are holding office in Her Majesty's Government, but I suggest it is not much short of 100. I am not sure what the latest figures are, but it is of that order.
I then turned to the interpretation clause in this Bill, to see whether I could get any help there. Perhaps I may make this point: These Ministers of State can do a lot of things. It is very important that the Scottish Executive should know who they are, and when they receive a letter they know that the person is authorised to give the necessary instructions or specification, or whatever it may be. In the interpretation clause of the Bill it says only this—and it is a very limited statement—
"Minister of the Crown includes the Treasury".
I thought for a minute that that was a misstatement for a "member of the Treasury". Your Lordships may or may not know that the number of people attached to the Treasury is 27 in number. It starts with the Lord High Treasurer, Mr. Callaghan, and ends with the Baroness Stedman. In between there are 25 other people. But I do not think that is what is intended by "a Minister of the Crown", with great respect to the noble Baroness.
I then turned to the Interpretation Act 1889 and there found that the Treasury includes the Lord High Treasurer and the
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Commissioners of Her Majesty's Treasury. I think it is common knowledge that the Commissioners of Her Majesty's Treasury are now the Whips in the other place, and I do not think they are the people intended to be covered. I must be quite clear here. I do not really mind what the noble and learned Lord puts in, so long as it is clear to the Executive what he means.
I suggested the Secretary of State. Secretaries of State are odd people: they are rather like the Holy Trinity. Three in One, but actually they are 15 in one—15 Secretaries of State. That covers almost everything that is likely to be required of a Minister of State. I think it is true that you might require to add the Minister of Agriculture. the Chancellor of the Exchequer and perhaps the Lord Privy Seal, but all I am asking the noble and learned Lord —or whoever is going to reply—is, can we please have in the interpretation clause a perfectly clear statement as to who is and who is not a Minister of the Crown? Any of these people, for example the noble Baroness, Lady Stedman, could get up in the morning and say, "I wish to notify to the Scottish Executive so and so. Signed, Minister of the Crown". That is a legal document which the Scottish Executive would have to carry out. That is as the Bill is printed. I am asking the very simple question: Will the noble and learned Lord please specify precisely what is meant by a "Minister of the Crown?" That is all I am asking, and I really think this is essential for the ordinary operation of this Act. I beg to move.
10.7 p.m.
Baroness STEDMAN: I am delighted to be informed that I am holding up 26 other people in the Treasury. I certainly did not realise that I had quite that strength. The term "Minister of the Crown" is much wider than the term "Secretary of State". Most ministerial functions today are vested in a holder of the office of Secretary of State—an office which, as the Committee will know, is one and indivisible. But there is still a residue of functions which are left with office holders who are styled Ministers. We have a Minister for Agriculture, Fisheries and Food, we have a Minister

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for the Civil Service. We also have Departments which technically lack a ministerial head. The only one of relevance for present purposes is the Treasury, which Clause 77(1), when we come to it, will bring within the definition of "Minister of the Crown".
In the context of any transfer of ministerial functions, the invariable practice is to refer to the functions of Ministers. The terms of the Ministers of the Crown Act 1975, under which ordinary transfers are effected, will confirm this. It would be wrong if this present Bill, with its vast sweep of functions, proceeded any differently from that Act. Indeed, Clause 20(3), to which Clause 20 (11) is subordinate, itself refers to the powers of a Minister of the Crown.
But it is really much more than a drafting point. If the Bill transferred only functions vested in a Secretary of State it would not transfer any functions vested in other Ministers or in the Treasury. Certainly the bulk of the functions affected by Clause 20 are vested in a Secretary of State, and most importantly (though not exclusively) in the Secretary of State for Scotland. There are other ministerial functions involved as well. It is the Government's considered intention to transfer these, but the whole of the Bill assumes that the other ministerial functions are to be transferred, so this Amendment would put the rest of the Bill from Clause 20(3) onwards completely out of joint. We think it is misconceived but, if the noble Earl would like me to take it back to the officials and have another look at it to see if we can get something in the interpretation part, then we shall do that.
The Earl of SELKIRK: I must say I think the reply of the noble Baroness is totally misconceived, partly because I mentioned all the points which she mentioned herself. I knew that the Secretary of State did not cover everything; I mentioned the Minister of Agriculture, I mentioned the Chancellor of the Exchequer, I mentioned the Lord Privy Seal, meaning the Minister for the Civil Service. I mentioned all those points. What I am asking for—and she made no attempt to answer—was specification of
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what was wanted. She told me that a Minister of the Crown was wider than a Secretary of State. Did the noble Baroness think I did not know that? Does she really think that everyone in this House does not know that? Of course they know that, but I am suggesting that we should specify who is meant.
The noble Baroness is not just being obstinate, surely. This is really a sensible proposition. There is no political point here. This is really something to improve the Bill. Can the Government really not think again on any known subject? I do not want to be too forceful, but really this is a simple improvement which everyone in this Committee really wants. Can I ask the noble Baroness to think again?
Baroness STEDMAN: I did say that I would take it back and consult with my officials to see whether we could include something in the interpretative part of it.
The Earl of SELKIRK: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 20 shall stand part of the Bill?
10.11 p.m.
Lord CAMPBELL of CROY: I should like to speak briefly on this because we must register at this point the fact that we believe that one of the grave defects in the Bill is that it does result in two Executives, in a way which brings them into conflict, we believe unnecessarily. As drafted, the Bill is hound to create inevitable clashes. It could be likened to the promotion of a boxing match; the Bill provides the ring, the ropes, the gloves and the seconds. And if there were to be a Conservative Government at Westminster and a Labour majority in Edinburgh it could indeed he said: "In the red corner" and "In the blue corner". The difficulties do not arise simply from different Parties in power at Westminster and Edinburgh, or different policies. It is the way in which the Executive is being created that means that it and the Secretary of State are being placed in an arena, and the rules are being drawn in such a way that they are almost being

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put in as gladiators to fight each other. There is bound to be continuous friction.
The main reason for this is that the second Executive, the one which we are discussing in the Bill, is to be formed from an Assembly with legislative powers. We are used to an executive in local government, and of course there are differences of opinion and arguments between central Government and local government, but these are nothing to the clashes that can occur under the terms of this Bill where the second Executive comes from an Assembly with legislative powers. It can initiate and pass laws as well as the Parliament at Westminster.
We believe that it would have been better to have one Executive, perhaps based on the Secretary of State for Scotland, in a new form, and that Executive being answerable to the Assembly and carrying out various duties in relation to the Assembly. There would then have been differences of opinion, no doubt, in the Assembly, the kind of differences of opinion between that Front Bench and Members in the Chamber, but there would not have been clashes between two Executives and a great amount of time spent on how they may be settled.
There is less being devolved to the Assembly than is already devolved administratively to the Secretary of State for Scotland. He and his Ministers and Departments in Edinburgh are now covering a considerably wider field than is to be devolved, under Schedule 10, to the new Assembly and its Executive. So the Secretary of State for Scotland is being left with some of his present functions, and he also is being given supervisory and veto functions over the Scottish Executive, though the situations in which those can be used, and how his powers are to be used, are still not clear. Some of them are still to be discussed in later clauses.
An Assembly does not need to have an Executive within it, and I give the example of the United States Congress. No one can say that the United States Congress lacks muscle, but it has no Executive within it. It has an inquisitorial role besides its legislative function. Therefore, it certainly is not necessary to have a second Executive within an Assembly.
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So I must register at this point that we think that by deciding to have two Executives the Government have made the problem much more difficult.
The other point that I should like to raise on the question, Whether the clause shall stand part?, because it has not come up yet, is the role and nature of the assistants. We have talked about the Scottish Secretaries. Assistants are to be appointed under subsection (4)(b). Those assistants must be Members of the Assembly, but otherwise we know very little about them. Again, we do not know how many of them there are to be, and we should be grateful if the Government could tell us what kind of animal they will be. Are they to be the equivalent of junior Ministers? Are they to be, therefore, part of the Executive themselves or are they to be more in the nature of Parliamentary Private Secretaries—PPSs as we know them—that is to say, not part of the Executive but working personally and individually for Scottish Secretaries? At present, there is absolutely no clue in the Bill about the role of the assistants.
10.17 p.m.
Lord McCLUSKEY: I should just like to say a general word, having listened to a few general words from the noble Lord, Lord Campbell of Croy. First of all, he has chosen, in a series of mixed metaphors, to use what I must characterise as quite extravagant language about the possibilities of conflict. He has spoken about rings, gloves, gladiators and conflicts. I can only say that I regard that as extravagant. If one looks at the debates on matters of detail I do not think that that is the kind of situation which one can reasonably expect to obtain in Scotland post-devolution or, indeed, between the Assembly, on the one hand, and this Executive and the Administration at Westminster, on the other.
I am grateful to the noble Lord for giving us a tantalising glimpse of Conservative thinking upon how these matters might work, but the kind of scheme that he is talking about, however commendable on its merits, has nothing whatever to do with the scheme of devolution envisaged in this Bill. Therefore, it may be a pity,

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as he suggests, but the scheme of devolution in this Bill is entirely different from the kind of scheme that the noble Lord was talking about. I do not think that he seriously suggests that we could take out this clause, as it stands, and write in an entirely different scheme that would not wreck the scheme of devolution contained in the Bill.
As regards assistants, once again I come back to the point that I made earlier. The Assembly surely will decide for itself what role the assistants ought to have. It holds the purse strings under Clause 31. It may be that assistants will not be needed in any great numbers. It may be that one will suffice. It may be that two will suffice. It may be that only the First Secretary will require an assistant—one just does not know. We cannot judge at present. Apart from anything else, as noble Lords will concede, we do not really know the final shape of Schedule 10 and Schedule 11 because they are matters yet for debate. It may well be that there will be Amendments to add parts to these Schedules, and it may well be that there will be successful Amendments to remove parts of the Schedules.
It is only when one has the final scheme and when the Assembly meets for the first time and when the Executive meets for the first time to consider what its remit truly is and what its responsibilities really are, that it will be possible to decide how many assistants there will be; whether they will be paid more than ordinary Assembly Members, and if so how much; and what their functions will be. We are merely trying to provide them with the opportunities and sufficient flexibility to decide what they can best do in the light of the task that faces them.
The Earl of LAUDERDALE: The noble and learned Lord is saying in effect that this is an enabling Bill, and no doubt it is. However, what has been worrying us, and what causes me to respond unsympathetically to his jibes at my noble friend for extravagant language, is that he seems to dismiss altogether the possibility, let alone the likelihood, of serious tension between the Executive in Edinburgh and the Executive here in London.
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With very great respect to the noble and learned Lord—and as the Committee stage continues, I am sure that he will become more and more attuned to the mood of the Committee—if the rather rough way of dismissing interventions because they use picturesque language (the noble and learned Lord called it "exaggerated") is repeated, it will tend to alienate the sympathy which we all feel for the unfortunate Ministers who have to pilot this very difficult and muddled Bill through. That happened last night when the noble Lord from the Highlands raised a perfectly legitimate, though wide, point on the Amendment, although it was no wider than the noble and learned Lord had been earlier. I should not have thought that my noble friend Lord Campbell of Croy was one who gives way to exaggerated language. If noble Lords have ever heard him on a public platform, they will know that he is so dull that he sends everyone to sleep. But to jibe in that sort of way at serious, well-intentioned interventions from this side will not hasten the passage of the Bill or encourage sympathy and constructive contributions to it.
I am trying to say in the nicest possible way that we have had one or two instances of exaggerated reaction from the noble and learned Lord opposite. I am sure that as time goes on he will find that this is a friendly place; that we are happy to forget the past; that we look forward to the future; and that as time goes on we look forward to more of his interventions with the greatest good humour.
Lord HYLTON: In the course of Clause 20 we have discussed at some length the future of the Civil Service in Scotland. Are the Government able to say to what extent those civil servants who will be administering or dealing with devolved subjects in future will be bound by the Official Secrets Act? There is a considerable body of feeling, both in Parliament and outside, which holds that far too many of the operations of Government are cloaked in secrecy. As has been pointed out, there will be a very considerable reorganisation, so will there be an opportunity for diminishing the number of non-secret areas that are covered by the Act? I apologise for not having given prior notice of this question. If either the noble and learned

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Lord, Lord McCluskey, or the noble Baroness, Lady Stedman, would prefer to write to me on this matter, I shall be entirely satisfied.
Lord McCLUSKEY: That is most kind of the noble Lord, and at this hour of the night I shall gladly accept that invitation.
Clause 20 agreed to.
The DEPUTY CHAIRMAN of COMMITTEES (Viscount Hood)The DEPUTY CHAIRMAN of COMMITTEES (Viscount Hood): The next Amendment is No. 249 standing in the name of the Lord Chancellor.
10.23 p.m.
Baroness STEDMAN Baroness STEDMAN moved Amendment No. 249:
Divide Clause 20 into two clauses, the first consisting of subsections (1) and (2) and (4) to (10) and the second consisting of subsections (3) and (11).
The noble Baroness said: That was a rapid promotion from the bottom of the Treasury list up to the Lord Chancellor. This Amendment is merely a drafting Amendment to split the present clause into two. The first clause will consist of subsections (1) and (2) and (4) to (10), all of which relate to the constitution of the Scottish Executive. The second clause will consist of subsections (3) and (11), which relate to the powers of the Scottish Executive. We commend this to the Committee as a more orderly and logical presentation of the material in the clause. We think that the importance of that material justifies the care taken, and the result ought to help the reader. I hope that this is non-contentious.
The Earl of SELKIRK: I should like to make the observation that it is non-contentious, but we shall need an Amendment to subsection (9).
Lord DRUMALBYN: On a point of pure information, may I ask whether the necessary Amendments are automatically made before the next stage?
Baroness STEDMAN: Yes, they are.
On Question, Amendment agreed to.
Clause 21 [Subordinate instruments]:
10.25 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 103:
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Page 10, line 8, after ("is") insert ("exclusively").
The noble Viscount said: Before I embark on this Amendment, may I say that it is now clear that the noble Baroness is a Minister of the Crown, she having moved that last Amendment. I have not made any secret of the fact that I consider there to he too much subordinate legislation. The purpose of this Amendment is to find out from the noble and learned Lord, Lord McCluskey, whether, as a result of the way in which we have the Bill drafted at the moment, we are likely to have subordinate legislation affecting subjects who live in England and Wales, emanating both from English and Welsh Ministers and from the Scottish Secretaries, both on the same subject and not necessarily compatible with each other. As the clause is drafted I think that this is possible.
If I can take the noble and learned Lord through my reasoning, he will be able to tell me whether I am right or not. I am sorry it is so difficult, but this is the complexity of the Bill. The picture is that the Scottish Secretary is going to be able to pick up the powers to make subordinate legislation which already exist under United Kingdom legislation on the Statute Book. I expect that he will continue to be able to do so if United Kingdom legislation is so passed in the future. Of course there are limitations on what he can do, because under the two subsections first of all the power under which he will act has to be exercisable as regards Scotland, but not solely as regards Scotland because it does not say so, and secondly it has to be exercisable exclusively in regard to a devolved matter. What is a devolved matter? One looks at Clause 59(3).
"In relation to the powers and duties of a Scottish Secretary, a devolved matter is"?
among other things, and do not let us be too complicated,
"any matter included in the Groups in Part of Schedule 10 to this Act".
One looks at Schedule 10. to Schedule 10 is:
"Matters within legislative Assembly, and within powers of Scottish Executive."
That is the main cross-heading then it says:
"The groups of devolved matters".

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If it has to he within the legislative competence of the Assembly, that means that one has to look at Schedule 2, because that is the definition of what is within the legislative competence of the Assembly.
When one looks at Schedule 2 an old friend immediately springs out to greet one, which is paragraph 8. Paragraph 8 of Schedule 2 makes it plain that although in the case of anything that is within the legislative competence it must primarily concern Scotland, it does not have exclusively to do so, because if there is some consequential cross-Border implication—and in my mind I always think of this in terms of enforcement of court orders, or something of that sort, which could easily be a proper provision dealt with under paragraph 8—you can have, under that chain of reasoning, a power exercisable as regards Scotland in terms of Clause 21(1)(a), and exercisable exclusively with regard to a devolved matter, which still, lo and behold!, affects the citizens of England and Wales by means not of primary but, Heaven forfend, of secondary legislation.
The fact that the Scottish Secretary is able to use the powers under United Kingdom legislation to make subordinate Instruments which affect not only Scottish citizens but also those who live in England, does not prevent the requisite Minister south of the Border from also making Statutory Instruments affecting the same people who live in England and Wales. If they both of them exercise these powers, and do so in a way which is incompatible the one with the other, there is nothing that the Secretary of State for Scotland can do to curb the exercise of these powers by the Scottish Secretary. If one looks at Clause 37, which is the only power I can find in the Bill which enables the Secretary of State to deal with subordinate Instruments made by the Scottish Secretary, he can only interfere and revoke the Instrument if it affects a reserved matter, whether directly or indirectly.
If one then looks at the definition of a reserved matter—nothing is ever straightforward in this Bill; it is not in Clause 37 but in Clause 36—one finds that it concerns Scotland but it is something in respect of which a Scottish Secretary has no power to act. We have already discovered that
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he did have power to act because it is given to him by paragraph 8 of Schedule 2 via Schedule 10 via Clause 59 and hack again to Clause 21(1)(b). So the Secretary of State cannot veto the matter under Clause 37; and therefore we have two separate Legislatures which do not agree with each other passing subordinate legislation affecting the citizens of England and Wales (incidentally in the case of Scotland but intentionally in the case of the English and Welsh Minister).
That cannot be a very satisfactory situation, and I shall explain why. First, I defy anybody who lives in England or Wales to find out what Statutory Instruments affecting him are made in the course of a year; they comprise about five volumes and they occupy about 1 ft. 6 in. of a shelf, and that happens every year. In addition, he is supposed to know or know where to find, and then find his way about, the subordinate Instruments made by the Scottish Assembly, and they will probably not be available in England and Wales anyway because no library will buy them. Before we pass the clause in this form, if I have it right, we should think again. "Exclusively" would stop all that because the Scottish Secretary would not be able to do anything by way of subordinate Instrument south of the Border.
10.31 p.m.
Lord McCLUSKEY: I acknowledge the accuracy of the noble Viscount's analysis of the matter and the only words to which I should perhaps additionally draw attention are "to the extent that", and accordingly, reading the matter short:
"Where … under any Act passed before this Act, any power to make … regulations … is conferred on a Minister of the Crown, then, to the extent that … the power is exercisable as regards Scotland … it shall be exercisable by a Scottish Secretary",
I would found on those words as really achieving what I think the noble Viscount had in mind to achieve by inserting the word "exclusively", and I would like him to consider that answer.
I also acknowledge that, following the matter as he rightly did, we come to paragraph 2 of Schedule 8 and on that, as I acknowledged the other day in his absence, the Amendments which he and the noble Earl, Lord Mansfield, tabled drew our attention to the need for a reconsideration of the terms of Clause 35.

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This of course relates to override in respect of primary legislation but does not, as does Clause 37 along with Clause 36, in so far as is necessary, deal with override in respect of Executive acts.
At the conclusion of that debate I informed the Committee that we would look at the wording of paragraph 2 of Schedule 2 and I informed the Committee also that the Government would move an Amendment to Clause 35. Plainly, I will give consideration to the matters that have been mentioned tonight and, if the noble Viscount does not feel that his point is met by the words "to the extent that", then that will intensify my probing into this matter to make quite sure that it is not possible to produce the kind of situation which horrifies him and would horrify us.
Viscount COLVILLE of CULROSS: The noble and learned Lord is very generous and helpful. I do not think that I would be satisfied with the reliance which he has placed on the words "to the extent that", because the Bill then goes on to set out the extent, and the extent plainly comprises paragraph 8 of Schedule 2, as that must be spelt into the general scheme of the devolved matter which is within the extent of the jurisdiction of the Scottish Secretary to make subordinate Instruments. Therefore, however much he may try to cut it down by reliance on those words, I think that he makes it perfectly plain, in saying "to the extent that", that, after a long chain of reasoning, one is to be allowed, if one is a Scottish Secretary, to rely upon Schedule 8. One can affect, by way of a subordinate Instrument, the rights and duties of people south of the Border.
I do not want to say any more than that. I know that this matter has been discussed before; I have read what was said. I do not think that the Amendment to Clause 35 will cover anything to do with subordinate Instruments, and that is why I did not want to deal with it by Amendments relating to Clause 35. I thought it better to attack it in Schedule 2 itself. Nevertheless, we shall look forward to what the Government produce on this question. I hope that they may take this point in.
From what the noble and learned Lord said, I believe that it would be better, on
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the whole, if the subordinate Instruments did not stray across the Border. If that is what the Government wish to achieve, then we are absolutely on all fours with each other, and I shall be happy indeed to await what the Government produce. Can the noble and learned Lord tell me whether that is what the Government want? Do they want to prevent clashing subordinate Instruments affecting people in England and Wales being made by two different legislative Assemblies?
Lord McCLUSKEY: The answer is, Yes—with a qualification. For example, if a Scottish Secretary wanted to make a subordinate Instrument under which a person could apply for a post, and he had to fulfil certain qualifications, of course these qualifications would be qualifications which had to be fulfilled by a person whatever his geographical situation. Accordingly, in that situation, the subordinate Instrument would be one which would have an effect outside Scotland. It would have an effect almost anyv, here, in fact. There is that kind of example.
Certainly, it is not the Government's intention that the Scottish Secretary should have power to make provisions by subordinate Instrument which would enable him to reach across the Border and impose punishments or enforce matters across the Border in the manner that the noble Viscount envisaged. I think that we are at one on the substance of this. I shall be happy to look at the matter in that light. Again, I am not promising to make any alteration, and I hope that the noble Viscount will also look at what has been said.
Viscount COLVILLE of CULROSS: I am grateful to the noble and learned Lord. There is no difficulty about the first example, because the person applying for the post, whether he comes from Aberystwyth, Aberdeen, or some place in England beginning with A, or from anywhere overseas, will only be accepting a post within Scotland, and therefore there will be no difficulty. It was the second point that I wanted to establish. I ant very happy if that is what the Goverment want, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Baroness STEDMAN Baroness STEDMAN moved Amendment No. 250:
Page 10, line 17, after ("by") insert ("or in pursuance of a resolution of").
The noble Baroness said: Again, this is a minor technical Amendment to correct the reference in Clause 21(2)(b) to Parliamentary procedure for the annulment or approval of a subordinate Instrument. The clause refers to annulment by either or both Houses of Parliament. That is too compressed to be accurate. What happens, under Section 5 of the Statutory Instruments Act 1946, is that either House can resolve that an Address be presented to Her Majesty praying that the Instrument he annulled, and Her Májesty may then, by Order in Council, revoke the Instrument. The clause should therefore refer to annulment in pursuance of a Resolution. This is what we hope the Amendment does. I beg to move.
On question, Amendment agreed to.
[Amendments Nos. 310 and 311 not moved.]
Clause 21, as amended, agreed to.
Schedule 3 agreed to.
Clause 22 [Powers exercisable with consent or concurrently]:
[Amendments Nos. 312 and 313 not moved.]
10.41 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 104:
Page 11, line 41, leave out ("both") and insert ("only").
The noble Viscount said: I think that in discussing these Amendments—that is to say, Nos. 104 and 105—I am beginning to get on to the territory of my noble friend Lord Drumalbyn in Amendment No. 106; and since, for technical reasons, we have, as a result of this, got on to the provisions of Schedule 5 before the provisions of Schedule 4, it would probably be convenient if I also mentioned Amendment No. 109. I hasten to allay any fears which may arise among those on the Benches opposite when I bring up their beloved Community Land Act should any of the noble Lords opposite by any chance not fully have comprehended the niceties of their own legislation. I am using this only by way of illustration,
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and nobody need take the individual implications of Amendment No. 109 particularly seriously.
What I should like to know is how this is supposed to work. We shall come back in a moment to Schedule 4, because I should quite like to know how that is going to work as well; but Schedule 5 has a collection of provisions in it whereby the powers can be exercised, both by the Secretary of State and by a Scottish Secretary. I do not think I wish to insist particularly on the terms of Amendment No. 104 or Amendment No. 105 as they stand: it is simply that I want to know how the thing is supposed to work in practice.
Let us take, for the sake of argument—and solely for the sake of argument—Section 18 of the Community Land Act. This is one of the matters on which the Schedule says that powers are exercisable concurrently; but, unless the Amendment to be moved by my noble friend Lord Drumalbyn is accepted, the subsection which brings in Schedule 12 does not speak of anything being exercised concurrently but simply says that the power is exercisable both by the Secretary of State and by a Scottish Secretary.
We have been discussing conflict, and it seems to me that the Bill as it is at present arranged—and subsection (3) of Clause 22 is a good example—has a built-in possibility of conflict. The United Kingdom Secretary of State could choose to exercise his powers in one direction, whereas the Scottish Secretary of State could choose to exercise his powers in the opposite direction; and both of them could purport to do so in relation to Scotland.
Let us take the Community Land Act for a moment. Section 18 provides that the Secretary of State can, among many other things, designate the descriptions of relevant development in respect of which the order he is making is to apply. In other words, he can say that all industrial development falls within the Community Land Act. When he has designated that, one of the things that will happen is this: it is the duty of all authorities whose areas include land to which the order applies to arrange between themselves for all outstanding material interests in land (which means to say everybody's ownership of the

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land) which is needed for the purposes of the designated development to be acquired by one of those local authorities. So, once an order is made—this is only illustrative, I hasten to say—all the land brought forward for development for industrial purposes has to go through public ownership thereafter.
I do not think that it is any enormous secret that those of us who sit on this side of the Committee consider the Community Land Act to be a collection of unmitigated rubbish which is doing a great deal of harm, whereas it is the golden calf for those who sit opposite. I can envisage a situation whereby, if one has powers exercisable both by the Secretary of State in London in relation to Scotland among other places and, at the same time, by the Scottish Secretary in Edinburgh, the two could, if they did not belong to the same political Party, easily have different views about whether to designate or not. I believe, though I am not sure, that, if you designate under the Community Land Act, you may possibly be able also to de-designate. That is a possibility.
How is this supposed to work? Are they going to have powers so that they can act in conflict with each other, particularly on political grounds; or are they, in relation to Scotland, only to act concurrently, as the heading to the Schedule states, although the subsection does not? If they act only concurrently, is there not a conflict the other way round, in that the Scottish Secretary, as a Socialist, would like to bring in under Section 18 of the Community Land Act all land brought forward for industrial development, whereas the Secretary of State in London will have none of it—in which case the Scottish Secretary can do nothing at all? There is the veto power in London. How will it work? I do not understand it all at the moment. Whichever way it is done, whether it is to be done concurrently so that each has to agree, or is to be done by each of them individually so that they may do things which conflict with each other, we are bound to have the worst of both worlds. I shall await with enormous interest the explanation of this provision from the noble and learned Lord. I beg to move.
10.47 p.m.
Lord McCLUSKEY: I will confess to being a little confused because the noble
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Viscount, with an agility which I can only admire, in speaking to Amendment No. 104 has come to Amendment No. 109 and to the Community Land Act—words which I am sure will be found written on his heart. May I perhaps deal with the point he raised, which really relates to the possibility of conflict arising as a result of the provisions of this clause and Schedule 5 in relation to what he said with regard to the Community Land Act.
Let me explain what the Government thinking was for putting the provision in as it was, and then try to deal with the particular point of conflict that he envisaged. The Government believe that it is essential that the Community Land Act should apply uniformly as between England and Scotland and Wales since divergencies could lead to damaging economic and fiscal distortions. For that reason, the Bill confers no legislative competence in relation to the matters dealt with by that Act. The noble Viscount will accept that. This is secured, in any event, by the entry for the Act in Part III of Schedule 10Ȕin the second column on page 67.
However, the Bill equips the Scottish administration with what the 1975 White Paper describes as "substantial supervisory functions". These are set out in paragraph S of Group D in Schedule 11. The main object of the community land scheme is to restore to the community the increase in the value of land arising from its efforts. From the first appointed day under the 1975 Act, acquiring authorities have a general duty to have regard to the desirability of bringing land into public ownership and to buy land to make it available for development. Purchases will at that stage be made net of development land tax. Ministers will be able to make orders under Section 18, which is the section referred to, of the 1975 Act providing that land for specified forms of development or in specified areas must have passed through public ownership before development. When the coverage of such orders is complete, the second appointed day can be fixed. This will have the effect of changing the basis of compensation for land publicly acquired for new development from a market value basis to a current use value basis.
Because of the importance of ensuring that the scheme applies uniformly across

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Great Britain, devolution of ministerial powers under the 1975 Act has to be qualified in certain ways. It is envisaged that the making of Section 18 orders (to apply the scheme to specified areas or forms of development) will normally be the responsibility of the Scottish Administration. But until such orders are in force for the whole of Great Britain, the second appointed day cannot be fixed and the intended change in the statutory basis of compensation accomplished. It is for that reason that the Bill gives the Secretary of State concurrent power to make Section 18 orders; without such power (and the Amendment would deny it) the Scottish Adminstration could, if so minded, prevent the making of an order fixing the second appointed day by ensuring that the condition precedent—namely. full coverage of Section 18 orders —was not met.
The power to make the order fixing the second appointed day is not itself devolved: the Government must retain that power to ensure a common date for the whole of Great Britain for the change in the basis of compensation, which will, as I have indicated, have direct fiscal repercussions as well as wider economic implications. Because of the important part to be played by Section 18 orders in bringing the Community Land Act into complete operation the Government are not prepared to give up the right to exercise the Section 18 power on a concurrent basis.
I recognise that that explanation is not meeting the precise point that the noble Viscount has made, but it does afford the explanation as to the Government's attitude and why the provision is couched in the terms that it is. As I understand the noble Viscount, he is really envisaging the converse of that situation. He sees in Scotland a Scottish Secretary who is a member of the Labour Party, a member of a Labour Administration in Scotland, and he sees in London a Secretary of State of a Conservative persuasion. That seems to me to he a highly unlikely situation because, as I understand Conservative Party policy, what will be done on Day 2 of the next Conservative Government, should such a day ever arrive, will he that they will move the repeal of the Community Land Act.
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Accordingly, one would have thought it hardly likely that one would get a Scottish Administration going ahead with designations on the one hand, and a Conservative Secretary of State wanting to counter-designate on the other. The scenario which he has put before the Committee is not one I would consider very likely.
In that situation—the one in which the Scottish Executive are keen to have the second appointed day, and the Secretary of State is not keen to have the second appointed day arrive by completing all the designations—the Scottish Executive could use their powers to the full and no harm is done because of the terms of Section 18(1). The Secretary of State cannot fix a second appointed day until all the necessary orders have been made. By definition this has not been done, or he would not be all set for the second appointed day. I do not think that any question of overriding comes into the matter. I certainly cannot refer to it. I hope that the noble Viscount will consider that a sufficient answer to his concern. But if it is not, I have no doubt that, even at this late hour, he will let me know.
Lord MOTTISTONE: Before the noble and learned Lord sits down, he has not really answered my noble friend with that bit of smoke-screen about what might happen if a Conservative Government got into power. Surely the point at issue is not that, but this joint exercise of powers when you have different political persuasions: it does not matter which way round it is. My noble friend said he was choosing the Community Land Act purely as an example, but the point at issue is that if you have a Conservative Government either in Edinburgh or Westminster and a Labour Government at the other end, how can you have concurrent powers within the purposes of the Bill?
It seems to me it is going to lead to the most extraordinary clash of opinion and that really this whole section—one can see the point of it, because the noble and learned Lord spelt it out to us—seems a little unreal, as indeed do other things in the Bill. I really think the Government ought to give thought to this, with a very firm view in their minds: "How can this he applied when there is a difference of political persuasion between Edinburgh and Westminster?", and to read the entire situation from that point of view.

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If the noble and learned Lord would undertake to do that, I am sure it would satisfy us on this side; but without that I do not think it is reasonable.
10.57 p.m.
Viscount COLVILLE of CULROSS: do not know whether the noble and learned Lord would wish to say more on this—it is getting a bit late—but the thing works the other way as well. Maybe he is right—pray Heaven he is!—and that the first thing the Conservatives would do is to repeal this legislation. But let us look at the possibility the other way round, of a Socialist Government in Westminster and a Party—it does not matter which Party—or a combination of Parties which do not approve of the Community Land Act, in Edinburgh. The United Kingdom Secretary of State has made my order under Section 18, designating industrial land in Scotland and in England, because of course they want to go hand in hand; and the Administration in Edinburgh uses its powers under Section 53(4) of the Community Land Act to revoke the order in relation to Scotland, because what that section says is this:
"An order made under any provision of this Act, other than an order under Section 7 appointing the first or second appointed day "—
which is exactly what the noble and learned Lord has just been talking about?
"may be varied or revoked by a subsequent order so made".
So when we have powers under Clause 18 written into this Bill, we have powers not only to make but to revoke orders, and there is a situation then which is exactly the other way round geographically and politically. There is hound to be a clash. I do not mind whether or not you choose this Act: I chose it only because I am familiar with it. But it illustrates all too plainly, as my noble friend Lord Mottistone has just said, that there is being built into the Bill as it stands—it does not matter which way round you put it—an inevitable clash on some political basis between two Legislatures.
I cannot avoid the suspicion that this is not something the Government wish to build in as an automatic consequence of their drafting, and that they must want to look at this again. I cannot help thinking that this is a constructive suggestion which has been made by my noble friend and that it is one which the
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noble and learned Lord will want to take up and look at again; and I am quite sure he will do so.
Lord MACKIE of BENSHIE: Might I ask whether it is not the case that what you are talking about really is the Parliament of Great Britain, because they are the superior power? If a Government come in, whether it be Labour or Tory, in the Westminster Parliament they either decide to work the legislation as it stands, or to repeal it. To that extent, it appears to me that the noble and learned Lord, Lord McCluskey, is right, that, whether it be Labour dealing with a Conservative Administration in Scotland or Conservatives dealing with a Labour Administration in Scotland, the superior body must either work it or repeal it. So it appears to a layman that the noble and learned Lord, Lord McCluskey, is right.
Viscount COLVILLE of CULROSS: do not think so, while you have concurrent powers. Both Secretaries of State can operate this legislation. They are specifically given power to operate this legislation. As it stands at the moment, they can operate it at the same time and in the opposite direction, on both sides of the Border. I believe that that is the way that it works at the moment, and I cannot believe that that is right.
The Earl of SELKIRK: May I ask one question? The same kind of example is in Schedule 5, with the Historic Buildings and Ancient Monuments Act 1953. There is a concurrent operation, because this is a devolved subject. I do not know how these things are worked. What does it mean? If a subject is devolved, how can you operate concurrently on part of it?
11.2 p.m.
Lord McCLUSKEY: I should not have confined myself to the Community Land Act, because if there is one instance where one can make out a case for suggesting that there could, in conceivable circumstances, he real conflict and the possibility of a kind of designation and counter-designation ping-pong going on, I suppose that that is it. But may I make the general point, because the noble Lord, Lord Mottistone, drew attention to the general point, as did the noble Lord, Lord Mackie.

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In the main, powers are to he wholly devolved or wholly reserved. But the enactments which appear in Schedule 5 contain special features which make it necessary that they should be available for use by both the Secretary of State and the Scottish Secretary, to enable them to carry out their respective functions. So by means of Clause 22 and Schedule 5, the powers contained in the listed enactments can be exercised by either a Minister of the Crown or a Scottish Secretary: and, indeed, there is nothing to prevent them, if they so desire, from using the powers in association as part of a joint exercise.
For example, a Scottish Secretary, to take a less contentious example, will need access to Sections 75(1)(b) and 75(3)(f) of the Criminal Justice (Scotland) Act 1949, so that he can authorise expenditure nn certain aspects of criminal research as part of his wide-ranging responsibilities for crime, being dealt with in Group 26 on page 50, in Schedule 10. But the Secretary of State, on the other hand, will remain responsible for the police and for some crimes—for example, in relation to drugs, and he may wish to carry out research pertaining to his responsibilities. Another example, which, again, is not as contentious as the Community Land Act, is Section 78 of the Agriculture Act 1947, which is concerned with obtaining agricultural statistics, which would be relevant to both devolved and reserved agricultural functions, and thus of interest to both the Secretary of State and a Scottish Secretary.
Technically, there is nothing in the terms of the Bill to prevent a Scottish Secretary from using his powers under the enactments concerned within reserved areas, or the Secretary of State from using his within devolved areas. That is what the noble Viscount hones on to as a source of possible trouble. This is so because of the difficulties of devising and drafting a scheme which would, in all circumstances, prohibit the one from acting within the other's area of responsibility. Accordingly, the noble Viscount claims that the two gentlemen—the Secretary of State on the one hand, and the Scottish Secretary on the other—could take conflicting decisions in relation to the powers in Schedule 5.
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The Government do not share this view. In practice, they believe that concurrent powers will be operated by Scottish Secretaries in respect of devolved matters, and by the Secretary of State in respect of reserved matters, using the same powers but for different purposes. The Government believe that, in the normal situation, there will be reasonable co-operation between the Scottish Executive and the Government. Subject to leaving aside the Community Land Act, which I have sought to deal with, the powers concerned are not ones which are likely to lead to conflict. I do not know whether that view would be challenged in the light of the other enactments referred to in Schedule 5. Most of them are concerned with the provision of funds for certain activities, and T have given the example of research.
Unless the movers of the Amendment are suggesting that either the Government, on the one hand, or the Executive, on the other, will be prepared unnecessarily to spend both effort and money just to cause difficulties for each other, I think there is no real substance in the point—subject again to saying that the Community Land Act is a matter which I should certainly like to look at in the light of the observations which have been made.
The Earl of SELKIRK: The Bill says that any power may be exercised both by the Secretary of State and by a Scottish Secretary. Does that mean by either?
Lord McCLUSKEY: In this context—I think the noble Viscount will not disagree with me—it means "both" or either
Viscount COLVILLE of CULROSS: I agree.
The Earl of SELKIRK: I did not get that. Do they act concurrently or separately?
Lord McCLUSKEY: In this context, the word "both" on page 11 means that power may be exercised by either of them or by both of them. So they may act together in the kind of instance which I mentioned a moment ago, or one of them may act, or the other of them may act. These are powers which they share. They can act together in harmony and

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exercise these powers together or either of them can exercise the powers independently of the other. It is the possibility of independent action upon which the noble Viscount has focused because that, he says, is the area where conflict might arise.
Baroness ELLIOT of HARWOOD: And what happens if one does the one thing and the other the other thing?
Viscount COLVILLE of CULROSS: That is what I was saying.
Baroness ELLIOT of HARWOOD: What you are saying does not make any sense at all.
Lord McCLUSKEY: If I may address myself to the Committee, what I am saying to the Committee is that the Statutes which are named in the Schedule are concerned, as I have said, with the provision of funds and that kind of thing. One does not foresee the possibility of conflict there. That is always subject to the fact that if one saw the words "Community Land Act 1975" one would have to be insane to say that there is no possibility of conflict. I think it would be resolved, in the situation which the noble Viscount envisaged in opening, in the way that I contemplated, should the unhappy day arrive when his Part forms a Government at Westminster.
Viscount COLVILLE of CULROSS: As it stands, the two Government Ministers in London and in Edinburgh can act together in unison. They can act individually, each in the same direction, or they can act individually in conflict with each other. That is the way in which this works.
Lord McCLUSKEY: Or the one or the other can act.
Viscount COLVILLE of CULROSS: Yes. They can act individually but in conflict with each other. Those are the three possibilities. Although we are now looking at the provisions which are contained in Schedule 5, in future legislation there is nothing whatever to stop the draftsmen from adding to Schedule 5. And I bet they will. As legislation comes before the Westminster Parliament in future years, they will find reasons why
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that Schedule will have to be added to. It is not, therefore, safe to leave the scheme upon thebasis of the things contained in the Bill. I have illustrated this point well enough—it must be something which causes us concern, and I believe that we must all think about it. Therefore I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 105 not moved.]
11.9 p.m.
Lord DRUMALBYN Lord DRUMALBYN had given Notice of his intention to move Amendment No. 106:
Page 11, line 42, at end insert ("acting concurrently").
The noble Lord said: We have gone over the points concerned to a quite considerable extent today, so I have little to add in relation to this Amendment. The closing remarks of my noble friend Lord Colville of Culross have made clear the different ways in which this can work. My Amendment was designed to add the words "acting concurrently" in relation to the Secretary of State and a Scottish Secretary. However, concurrent action can, curiously enough, mean several things. It is used in this one clause in different senses. "Acting concurrently" can mean acting with the knowledge and consent of each other. It can mean actually sharing the work. But in a more constitutional sense it means that each has the power to do the same thing.
What attracted my attention particularly (I should like to go into this at greater length at a later time) was the effect of this on the Local Employment Act of 1972, which I had something to do with at an earlier date. It seems to me that this is a case where one would get into a lot of trouble in the making of grants and loans for services if you had two Ministers, one a Minister of the Crown and the other a Scottish Secretary, working in the same field at the same time without actually working in combination. The term "acting concurrently" clearly could be interpreted as meaning acting in combination, but from what has been said I do not think that that is what is meant by the clause. This was proposed to he purely explanatory and I rather think it would only work if the grants and

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loans were co-ordinated throughout, and I doubt whether that will be done.
It might be convenient if the noble and learned Lord will consider this matter between now and the time when we take Schedule 5, because I think we could get to the meat of it more easily by discussing it on Schedule 5. I wonder whether the noble and learned Lord would agree to that?
Lord McCLUSKEY: I certainly feel, in view of the lateness of the hour, that that offer would be most welcome. We can certainly discuss the matter and I hope I can satisfy the noble Lord when we come to the Question, Whether Schedule 5 shall be the fifth Schedule to the Bill? I shall be happy to agree to that course and perhaps we need not pursue the matter further tonight.
Clause 22 agreed to.
Lord STRABOLGI: This may be a convenient moment to halt the Committee.
Viscount COLVILLE of CULROSS: Is it just possible for me to ask for a quick explanation on Schedule 4—or Schedule 3?
Lord STRABOLGI: We have not reached Schedule 4 yet. I was proposing to ask the House to resume after this Amendment because we have now reached the agreed time.
Viscount COLVILLE of CULROSS: Then the noble Lord will excuse me from moving the Amendments because I cannot be here on Monday.
Lord STRABOLGI: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

EXPORT GUARANTEES AND OVERSEAS INVESTMENTS BILL [H.L.]
Reported from the Joint Committee, and recommitted to a Committee of the Whole House.
OATHS BILL [H.L]
Reported from the Joint Committee without Amendment, and recommitted to a Committee of the Whole House.