§ 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 iswithin the legislative competence of the Assembly".1177 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 1178 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 1179 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 1180 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 1181 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 1182 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 1183 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 1184 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 1185 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 proceedingsmay 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 1187 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 1188 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 1189 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 1190 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 1191 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, 1192 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 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. 1193 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 1194 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 1195 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.
1196 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 1197 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 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.
1199 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 1200 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 1201 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 1202 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
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 1203 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 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 1204 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 1205 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 1206 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 1207 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 1208 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 1209 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 1210 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 1211 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 1212 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 1213 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 1214 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 1215 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 1216 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 1217 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 1218 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 1219 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 1220 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 1221 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 1222 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 1223 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 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 1224 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 ofHer 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 1225 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 1226 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 1227 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 1228 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 1229 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 1230 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 1231 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 1232 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 1233 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 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 1236 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.
1237 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.
1238 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 1239 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 1241 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.