SCOTLAND BILL

HL Deb 24 April 1978 vol 390 cc1436-605

2.45 p.m.

The LORD CHANCELLOR (Lord Elwyn-Jones)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, that the House do now again resolve itself into Committee.—(The Lord Chancellor.)

On Question. Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

The Lord CHAIRMAN of COMMITTEES (Lord Aberdare)

May I draw the attention of your Lordships to the fact that as well as the Fourth Marshalled List of Amendments, there is another supplementary list of Amendments in the name of the noble Lord, Lord Drumalbyn.

Schedule 4 [Statutory Powers exercisable with concurrence or subject to consent or approval of a Minister of the Crown]:

[Amendments Nos. 107 and 108 not Moved.]

On Question, Whether Schedule 4 shall be the fourth Schedule to the Bill?

The Earl of MANSFIELD

Perhaps, for the sake of good order, I should say to your Lordships that my noble friend Lord Colville asked the Government two highly technical and complex questions, which he explained to me on the telephone some time after duties on Friday night. The noble and learned Lord, Lord McCluskey, has been good enough to answer them, at least on paper. The answers are long and not altogether easy to follow when one has just been given a piece of paper. In the circumstances, it is something which I know my noble friend will wish to consider at his leisure when he is able to do so. For my part, I cannot see any point in having a debate on this Schedule at this point of the Bill.

The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)

Perhaps I might just thank the noble Earl for what he has said. One of the questions related to Schedule 5 and one to Schedule 4. I shall be happy to write to the noble Viscount and give him the explanations that I have given on paper to the noble Earl, Lord Mansfield.

Schedule 4 agreed to.

Schedule 5 [Enactments conferring powers exercisable concurrently]:

[Amendment No. 109 not moved.]

On Question, Whether Schedule 5 shall be the fifth Schedule to the Bill?

Lord DRUMALBYN

I should like to make some observations on this Schedule. I shall be suggesting that this Schedule is not only lacking in precision but that it may give rise to problems of constitutional significance. The Schedule covers provisions in Acts of Parliament of very different kinds. The word "concurrently" does not appear in Clause 22(3) to which the Schedule is related. What that subsection says is this: Notwithstanding anything in the preceding provisions of this Act, any power under the enactments listed in Schedule 5 to this Act may be exercised both by the Secretary of State and by a Scottish Secretary.". I take it that the words: Notwithstanding anything in the preceding provisions of this Act appear in order to qualify Clause 21(1) which says this: Where, by or under any Act passed before this Act, any power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on a Minister of the Crown, then, to the extent that—

1. (a) the power is exercisable as regards Scotland; and
2. (b) it is so exercisable exclusively with respect to a devolved matter;

it shall be exercisable by a Scottish Secretary.". We are therefore dealing with powers which, but for Clause 22, would normally have been exercised by a Scottish Secretary but which, under subsection (3), are to be exercised by the Secretary of State also. Rather more obscurely, it seems to exclude matters in the enactments listed in subsection (5) which could not be dealt with by a Scottish Secretary, except as an agent of the Secretary of State.

I would point out that we are here considering executive powers of Ministers, and powers not within the legislative competence of the Assembly, except to the extent that either Legislature might amend. But, of course, the Ministers concerned—that is, the Secretary of State and a Scottish Secretary—are accountable to their respective Legislatures for the exercise of the powers. Surely, it may give rise to problems if the same powers, in the same fields of Government, are to be exercised separately, without any provision in the Bill for one to get the consent of the other or for them even to consult each other.

I would remind noble Lords that the rest of subsection (1) deals with just those points. That states: Where an enactment conferring a power on a Minister of the Crown makes provision for the exercise of the power with the concurrence or subject to the consent or approval of, or after consultation with, any other Minister of the Crown, that provision shall not apply to the exercise of the power … by a Scottish Secretary unless either— a) the enactment is listed in Schedule 4 …"— which we have just passed— or the power relates to the borrowing of money outside the United Kingdom or in a currency other than sterling". If a Scottish Secretary exercises his powers in a particular case, he can be questioned about it in the Assembly. But, equally, the Secretary of State can be questioned about it in Parliament, because it is a matter for which he apparently has responsibility under subsection (3) of Clause 22, under an enactment conferring a power, and vice versa.

Part I of Schedule 10 sets out the 26 groups of matters which are to be within the legislative competence of the Assembly, and within the power of the Scottish Executive. These are the devolved matters. Part II sets out the matters which are excluded from the groups, even though they appear to fall within them. Part III refers to certain enactments relating to the groups of devolved matters, and specifies which of those enactments referred to are included and which are excluded from these groups, or which powers or matters covered by the enactments are included or excluded, as the case may be. All that is in Schedule 10. That is complicated enough, but at least an attempt has been made to define which Legislature and which Executive is concerned— Westminster or Edinburgh.

But if an individual or an organisation wants one of these powers in Schedule 5 to be exercised, to whom is he to go? Will he know, unless ministerial responsibility for action is clearly fixed? If the Members of Parliament, or for that matter the Members of the Assembly, want something done under these concurrent powers, what happens if Parliament wants one step to be taken and the Assembly wants quite different action to be taken in the same matter? Surely, it would be possible to avoid this kind of confusion by precise provisions in the Bill.

At the end of our proceedings on Clause 22, I understood the noble and learned Lord to say that the words, both by the Secretary of State and by a Scottish Secretary could mean them acting together or each acting separately. What I am suggesting here is that it is not really proper to refer, as seems to be done in these various Acts that are referred to in Schedule 5, to matters which can be done only by the Secretary of State, side by side with matters that can be done by a Scottish Secretary, without sorting them out. I had the impression from the noble and learned Lord, when last we were dealing with Clause 22, that there were some matters that would be dealt with by the Secretary of State and some which would be dealt with by a Scottish Secretary, but which could also be dealt with by the Secretary of State because of overriding powers and so on. This seems a thoroughly unsatisfactory situation. I have been through these enactments very carefully and I can point to some of the difficulties that may arise. But if the noble and learned Lord wishes to deal first with the matter in principle, then I shall be very willing to listen to him and see whether it is necessary to weary your Lordships with details about the enactments that are referred to.

In passing, may I ask what exactly is the technical definition of an "enactment"? Is it an Act of Parliament, is it a provision in an Act of Parliament or is it both, because difficulties can also arise on that score? It may be as well if I give one example which is likely to cause most difficulty. That is the Local Employment Act 1972, and in that we have Section 7 which is self-explanatory. I ought to refer to that section to show the kind of difficulty that can arise.

The Local Employment Act has since been very much amended. It is the Act which determined development areas and intermediate areas and, having described the powers related thereto, which have almost all been amended, we come to Section 7 which has not been amended and states: Where … adequate provision has not been made for the needs of any development area or intermediate area in respect of a basic service for which the department is responsible, and it is expedient with a view to contributing to the development of industry in that area that the service should be improved, he may with the consent of the Treasury make grants or loans towards the cost of improving it to such persons and in such manner as appear to him appropriate.". Then it defines what is meant in this section by a "basic service": … basic service' means the provision of facilities for transport (whether by road, rail, water or air) or of power, lighting, heating, water, or sewerage, and sewage disposal facilities, or any other service ..on which the development of the area in question, and in particular of industrial undertakings therein, depends. Finally, it states: The powers conferred by this section are in addition to any other powers of a Minister of the Crown to make grants or loans. I think your Lordships will see that some of these matters are exclusively within the power of a Minister of the Crown, including the Secretary of State, to make grants or loans, and there are others which are related to local authority responsibilities, some of which, again, are under the Secretary of State for Scotland and some of which are under a Scottish Secretary. This seems to me a very odd way indeed of legislating, and it is difficult to see how this section will be implemented in the case of those services which affect Scotland. I think that that is a sufficient example to give.

2.59 p.m.

Lord McCLUSKEY

Without specific notice of these matters, I shall do my best to answer the noble Lord. Let me begin by making it plain that, in the main, powers—that is, executive powers—are wholly devolved or wholly reserved. But the enactments which your Lordships will find listed in Schedule 5 contain special features, which make it necessary that they should be available for use by both the Secretary of State and a Scottish Secretary, to enable them to carry out their respective functions. So by means of Clause 22 and Schedule 5 the powers contained in the enactments listed there can be exercised either by a Minister of the Crown or by a Scottish Secretary. Indeed, there is nothing to prevent them, if they so desire, from joining together in a joint exercise and acting concurrently in that sense.

On a previous occasion I gave an example and, perhaps, I might repeat it now. A Scottish Secretary will need access, for example, to Section 75(1)(b) and Section 75(3)(f) of the Criminal Justice (Scotland) Act 1949, so that he can authorise expenditure on certain aspects of criminal research as part of his responsibilities regarding crime. But the Secretary of State, who remains responsible for the police and for some crimes—for example, drugs offences—may also wish to carry out research. Accordingly, both the Scottish Secretary and the Secretary of State have access to the powers contained in this Act in order to allow them to authorise the necessary research.

To answer the specific point raised about the meaning of "enactment", in this context "enactment" means the particular provision, not the whole Act. So far as the Local Employment Act 1972 is concerned, as the noble Lord has suggested, this provision enables the Government to make grants or loans towards the provision of basic infrastructure services required for the development of industry in development and intermediate areas. After devolution, the Government will remain responsible for the development of industry and also for certain infrastructure services—for example, gas and electricity. Therefore, it is right that the Government should have full access to the powers under Section 7. But the Scottish Executive will have responsibility for other infrastructure services—for example, sewers and roads—and they will need access to the powers under Section 7 in respect of these services. The powers under Section 7 are therefore entered in Schedule 5 as being exercisable concurrently.

It will not be possible for the Scottish Executive to make grants or loans in respect of services which are reserved and thus to interfere with the Government's responsibilities. This is ensured by a limitation which the noble Lord will see by looking at Entry No. 3 in Group D of Schedule 11. He will find on page 68 of the Bill that there is a further reference in lines 30 to 32 to Section 7 of the Local Employment Act 1972, which the noble Lord may not have taken into account in considering this matter. Therefore "concurrently" applies only, in effect, to devolved infrastructure services. Normally such powers will in practice be exercised by the Scottish Executive, and the Secretary of State will have no reason to interfere; but the Secretary of State must retain a concurrent power to make payments because, as I have indicated, of the Government's wider responsibility for the development of industry.

Again it becomes a matter of looking at the particular enactments. I do not want to go through them all in detail; they are listed in Schedule 5. However, if noble Lords consider the explanation I have offered, I think they will find that there is nothing here to lead to any constitutional anomaly. The powers are dealt with in this way because it is expedient and sensible that they should be so dealt with, and I think that the noble Lord's fears are misplaced.

3.4 p.m.

Baroness ELLIOT of HARWOOD

I have listened' to the noble Lord's explanation with great care, but at the end of the day there must be somebody whose authority will override that of everybody else. Although the noble and learned Lord may well believe that the Secretary of State for Scotland and the Secretary of the Assembly will work in harmony, there is every chance that they may do nothing of the kind. They may belong to different Parties. There may be an Assembly in Scotland which supports strongly the present Socialist Government while there may be a Government for the whole of the United Kingdom which is not a Socialist Government. Who, then, has the authority? Is it for the Secretary of State to say to the Secretary of the Assembly, "I do not agree with what the Assembly is doing and therefore this cannot happen"? Admittedly, this cannot happen in the case of a devolved subject, but it can happen in the case of a Schedule 5 subject, several of which could be highly controversial. For example, there may be considerable complications over the Agriculture Act 1947. There would certainly he complications over Section 18 of the Community Land Act 1975. That Act is exceedingly controversial.

What the noble and learned Lord, whose explanation I tried to follow, does not seem to be able to explain is this. If at the end of the day the Secretary of State and the Secretary of the Assembly belong to different Parties and hold different views, who will have the final authority? Will the United Kingdom Government, in the person of the Secretary of State, or the Secretary of the Assembly have the final authority?

Lord McCLUSKEY

First, in relation to agriculture, if the noble Baroness will look at the section of the Agriculture Act which was referred to she will find that Section 78(1) reads: Where it appears to the Minister expedient so to do for the purpose of obtaining statistical information relating to agriculture, he may … do certain things. That is all that we are speaking about in this Schedule. If the Secretary of State wishes to have statistical information in relation to his responsibilities for agriculture, he can employ this section to obtain it. If the Scottish Secretary who has responsibility for agricultural land wishes to obtain this statistical information, he can obtain it; so the powers are available to both. It may be that it would be very convenient that they should both collect the information at the same time, in which event they would act together, but either can act separately. The principle is that the Scottish Secretary deals with devolved matters while the Secretary of State deals with non-devolved matters.

To turn to the question which the noble Baroness said I could not answer but which I shall now answer, when it comes to devolved matters the policy contained in the Bill is that the Scottish Secretary will deal with devolved matters. If the Government in London do not like it, simply because of policy differences, that is too bad. They will just have to let matters go. The whole point is that we can have a Labour or a Conservative Administration in Scotland and a Labour or a Conservative Administration at Westminster. In relation to devolved matters, the policy will be to hold back and to allow the Scots to do what they choose. But if at the end of the day it comes to a question of what the Scottish Secretary proposes to do having an effect of the kind contemplated by Clause 36, then the Secretary of State, usually the Secretary of State for Scotland, of course. will have the power to employ the override powers which are conferred by the terms of that clause.

I do not want to anticipate any debate upon Clause 36, but: If it appears to the Secretary of State

1. (a) that any action proposed to he taken by or on behalf of a Scottish Secretary would or might affect a reserved matter, whether directly or indirectly, or
2. (b) that any reserved matter would or might be affected directly or indirectly by any action capable of being so taken;

then, if it appears to him desirable in the public interest to use his powers under this subsection, he may direct that the proposed action shall not be taken or, as the case may be, that the action capable of being taken shall be taken". That is rather a mouthful from the Bill, but in substance it comes to this: provided that the test in Clause 36 can be passed, then the Secretary of State at Westminster may choose to override the action taken by the Scottish Secretary. So at the end of the day, provided that test is passed, the power remains at Westminster; but in relation to a purely devolved matter the whole policy of the Bill is that the Scottish Secretary must be allowed to go his own way. If the Secretary of State does not like it, he has to apply this self-denying ordinance and say,"We devolved control of these matters to the Scottish Executive and we must allow them to get on with it". Surely the Committee will accept that that is the answer, within the Bill and the context of this scheme of devolution, to the question which I have been asked.

3.10 p.m.

The Earl of SELKIRK

May I thank my noble friend Lord Drumalbyn for raising the question of these two Schedules. I find that they are most difficult to under- stand. My first question is whether or not it would be possible to redraft these two Schedules and make them into one Schedule. Both Schedules deal rather obscurely with the word "concurrently". If the Scottish Secretary deals with devolved matters and the Secretary of State with non-devolved matters, they are not acting concurrently; they are dealing with different spheres of activity, and I do not see why that should not be brought out more clearly. The noble and learned Lord went on to speak about the development of industry. But suppose a trading estate is formed, and the Scottish Secretary has to produce the drains and the Secretary of State for Scotland has to produce the industry; it postulates the possibility of delay which seems to me to he an unreasonably complicated sphere.

I was once concerned with developing trading estates and it is a difficult job without those complications. I wonder whether or not we can put these two Schedules into a slightly more understandable form. For instance, the Historic Buildings and Ancient Monuments Act is devolved; why then should the Secretary of State have to deal with it? I do not want to debate it, but I wonder whether the noble and learned Lord in due course could try to make this a little simpler so that people can understand roughly what is intended.

I do not particularly want to hark back to Schedule 4, but there is the important matter of the National Health Service terms and conditions of service. It is not easy to understand, butI believe this is a matter for the Secretary of State, although apparently the Scottish Secretary can do things with his consent. In other words, he has a partial responsibility for terms and conditions of service. This is important because people want to know who are their effective employers. I should be glad if the noble and learned Lord would try to simplify these issues, because if we find it difficult I am certain that the Assembly will find it difficult, too. Would it not be possible for it to be done in a slightly more coherent and straightforward way?

Lord DRUMALBYN

Perhaps it would be convenient if I were to follow on before the noble and learned Lord replies. The point I was looking at was not so much how the Executive exercised its powers —although that is important; I was looking at the Parliamentary and Assembly aspects of this and the effect on the ordinary citizen. Taking the Parliamentary aspect alone, it seems that under this Questions can be asked on these matters equally in Parliament and in the Assembly. Motions can he moved in both places, certainly so far as the devolved matters are concerned. I do not see that this makes real sense.

If one looks at Clause 22 as a whole, this is a very neat piece of drafting, but I think it is really "over-neat". An attempt has been made to compress it into too small a space and I suspect that it will cause a lot of difficulties. Subsections (1) and (2) of Clause 22, to which this section is linked, deal with consultation, consent and—"consent or approval of, or after consultation with -with concurrence. This is what the word "concurrently" really means. One cannot use a word in different senses in the same paragraph. The noble and learned Lord was good enough to talk about the agricultural statistics, and there are also the salmon and freshwater fishery statistics involved in the Schedule. Surely the sensible thing to do would be to have, within the devolved sphere, these matters dealt with with the consent of the Secretary of State, thus putting subsection (3) into line with subsections (1) and (2). That is a much more sensible way of dealing with it rather than to leave concurrent powers in the constitutional sense instead of in the sense used in Clause 22.

As my noble friend Lord Selkirk has said, this is worth looking at again. There are many points in it which could be questioned. One of the points that I am sure my noble friend Lord Selkirk will question is the passage dealing with historic buildings and ancient monuments. In that particular sphere, this Schedule excludes from the powers, as I understand it, of the Scottish Executive, the right to get money from the National Land Fund. I believe my noble friend has tabled an Amendment to take ancient monuments and historic buildings and the land that goes with them and land of natural beauty, and so forth, right out of Part I of the groups in Schedule 10. But if the Scottish Executive is to be given powers for the acquisition and maintenance of historic buildings and land, why on earth should this particular provision be taken out of this Schedule which allows for the National Land Fund to be used toreimburse the Scottish Secretary for acquisitions of this kind? That particular point is rather apart from the general line of argument, but I thought it right to alert the Committee in advance.

The main point is that, when we are setting up a separate Assembly with its own powers, everyeffort should be made to distinguish those powers and their exercise from the exercise of other powers in Scotland by the Secretary of State. I do not think that has been done here. The Government have exercised great ingenuity in separating out the powers. When they came to this issue they threw their hands in the air and said,"We cannot do it; we shall just have to put it in subsection (3)". I do not think it is good enough and I think the Government should exercise their ingenuity a little further.

3.18 p.m.

Lord McCLUSKEY

The Committee will have noticed that we have now strayed into Schedule 4 while discussing Schedule 5. I do not complain about that but it does require me to say something about Schedule 4. That Schedule lists certain ministerial powers which are to be devolved subject to a requirement for ministerial consent. The powers relate mainly to public sector pay and pensions. They are provisions affecting statutory undertakers operating for purposes which are not devolved, including provisions relating to compulsory purchase orders and also provisions relating to compulsory purchase orders on land held by local authorities for purposes which are not devolved.

That is what Schedule 4 is about and it is rather a different matter from Schedule 5, which is concerned with powers to which both the Scottish Secretary and the Secretary of State are to have access for the purposes of the particular provisions. One can test it, as indeed the noble Lord, Lord Drumalbyn, sought to do, by reference to the particular Statutes. I have referred to the one he mentioned and I will now turn to the Scottish Buildings and Ancient Monuments Act 1953, Sections 4 to 6. These sections contain the functions relating to the pay ment of grants for the repair and maintenance of buildings. Section 5 concerns the acquisition of buildings by the Government and their subsequent management, and Section 6 relates to the payment of grants to local authorities and the National Trust for the acquisition of buildings.

As the noble Earl, Lord Selkirk, has noticed, ancient monuments and historic buildings are devolved matters by virtue of Group 19 of Part I of Schedule 10. Payments for the acquisition of buildings will therefore normally be the responsibility of the Scottish Executive, but the Executive will be financed purely by the block fund and, as the noble Lord, Lord Drumalbyn, foresaw, will have no access to the National Land Fund. Section 7 of the appropriate Act which concerns payment from this fund is specifically reserved on page 55 in Part III of Schedule 10.

This fund is intended for use throughout Great Britain and it would be wrong that payments could not be made from it for the purpose of the purchase of buildings in Scotland. Accordingly, by putting the matter into Schedule 5—concurrent powers in relation to Sections 4 and 6—we now find that the Secretary of State has the necessary statutory authority to make grants and to acquire property in Scotland with money from the fund. So although the fund is not devolved the Secretary of State can make grants to acquire the property with money from the fund. If he did in fact acquire a building under Section 5 he would require to transfer that building to the Scottish Executive by virtue of Clause 67. So he would not be involved in the management of historic buildings in Scotland; that is a matter for the Executive under the Schedule 10 entry.

In my submission, concurrency in this sense—that is to say, both the Executive Secretary and the Secretary of State having access to the same powers—should not lead to any confusion or conflict. The powers under Sections 6, 5 and 4 of the Historic Buildings and Ancient Monuments Act 1953 are essential powers to grant or to purchase, and there is no question, therefore, of the two Secretaries trying to use the same powers to different ends. So I think when one comes to look at the detail of the particular enactment referred to in Schedule 5, or for that matter in Schedule 4, one will find that these problems do not arise, and that it is perfectly proper to keep Schedule 5 apart from Schedule 4 as they are concerned with different things.

The Earl of SELKIRK

I wonder whether the noble and learned Lord could explain this. Do the words"powers exercisable concurrently"mean that the Scottish Secretary has direct access to the Land Fund? That seems to be the meaning which comes from the word"concurrently".

Lord McCLUSKEY

Can the noble Earl remind me which line he is dealing with?

The Earl of SELKIRK

I am talking about the heading to Schedule 5, which reads,"Enactments conferring powers exercisable concurrently". I understand that the Historic Buildings and Ancient Monuments Act 1953, Sections 4 to 6, refer to the Land Fund. That means the Scottish Secretary has direct access to the Land Fund. I did not think that was what the noble and learned Lord said; he said the Secretary of State has access and not the Scottish Secretary.

Lord McCLUSKEY

I was trying to indicate that it is the Secretary of State who is given power by Schedule 5, under the sections of the Historic Buildings and Ancient Monuments Act 1953, to make the necessary grants and acquire property, not the Scottish Secretary.

The Earl of SELKIRK

What does the word"concurrently"mean then?

Lord DRUMALBYN

I wonder whether the noble and learned Lord is really right about that. The line says the Historic Buildings and Ancient Monuments Act 1953, Sections 4 to 6, and those are the powers that he was reading out, which include acquisition. What this means in effect is that the Secretary of State can say to the Scottish Secretary: "You want to buy that particular property. If you do, I am afraid I cannot make any payment to you from the National Land Fund", because it is Section 7 of this Act which refers to the National Land Fund, and that is not one of the powers exercisable concurrently. So I think that when we come to Schedule 10 my noble friend may have something to say about this.

The noble and learned Lord still cannot grasp the difficulty that if the Bill is framed in this way we shall have Questions and Motions about the same subjects in the Commons, and here for that matter, as well as in the Assembly. I should have thought it would be possible to devolve subjects to make certain that that was not so. Perhaps the noble and learned Lord will look at that.

Lord McCLUSKEY

I grasp perfectly well what the noble Lord is suggesting, but he must understand that Schedule 10, or any of the other Schedules, demonstrates the point clearly that, where you devolve certain matters and not others, owing to the complexity of legislation and the complexity of society, there are many overlaps—or to use the word that the Civil Service constantly pushes on to us, interfaces—between the devolved matters and the non-devolved matters. It is because of these interfaces or overlaps that one has got this rather complicated drawing of the boundaries.

Of course, where there are interfaces or overlaps there are going to be situations in which Questions may be perfectly competently asked of the Scottish Secretary and similar Questions asked of the Secretary of State. Where they both have access to the same powers, if they both choose to use them, of course one may get Questions both in Scotland and at Westminster. That is one of the necessary consequences of devolution of this kind. That is an essential part of the scheme and one cannot change it. I do not think the drafting needs to be looked at again, because if one looks at the particular Statutes one finds the answers; if noble Lords look at my answer earlier on in relation to the National Land Fund, Section 7, and compare that with the Schedule 5 entry relating to historic buildings, I think noble Lords will find a satisfactory answer there.

Lord DRUMALBYN

May I conclude by saying that I did not mean to imply that this is a matter of drafting; it is a matter of substance.

Schedule 5 agreed to.

Clause 23 [Crown interests and public records]:

3.27 p.m.

Lord HARMAR-NICHOLLS moved Amendment No. 314: Page 12, line 2, leave out from beginning to ("a") in line 3.

The noble Lord said: I beg to move the Amendment standing in my name on the Marshalled List.

Lord McCLUSKEY

I am not quite clear whether the noble Laid thinks there is any merit in this Amendment, and, if so, perhaps he would describe it to us, or whether he is just waiting to see what I have to say.

Lord HARMAR-NICHOLLS

That is the point. I am waiting to hear what the noble and learned Lord has to say about the Amendment I am suggesting.

Lord McCLUSKEY

I should have thought it was normal for the noble Lord to explain it, but if he wants the answer without asking the question I will endeavour to give it to him. First of all, in view of the failure of the noble Lord to explain what this Amendment is about, perhaps it would be a courtesy to the Committee if I were to do so. We are concerned here with Clause 23 of the Bill, which is one of the clauses about standing orders. It is the clause that says: The standing orders of the Assembly shall include provision for securing that a Bill proposing to make any such provision as is mentioned in Schedule 6 to this Act does so expressly and not merely by implication …". Schedule 6 is a Schedule listing a number of provisions of Assembly Bills requiring the Crown's consent, and they are provisions which, generally speaking, affect the Crown either in its private capacity or in its non-private capacity. Accordingly the scheme of Clause 23 is to make it mandatory upon the Assembly to include in its standing orders that any legislation affecting these matters does so expressly and not merely by implication. The purpose of the Amendment, as I understand it, and in the absence of any explanation from the noble Lord, is to delete the first few words so that such a provision is contained not in the standing orders of the Assembly but the Bill itself requires the provision to go in. I see the noble Lord is nodding; I think that signifies agreement.

The intention is perfectly clear here. It is to ensure that no Assembly Bill binds the Crown unless with the express consent of the Crown, and that consent has been signified. Essentially, therefore, this repeats the provision which obtains in Parliament, but we think it desirable to go a little further because there is a rule—or perhaps something less than a rule in Scots Law; certain dicta suggest that the rule in Scotland is slightly different from the rule obtaining in England, and accordingly it is desirable to make the matter expressed.

So what we really want is that where the Assembly Bill is to bind the Crown it should say, plainly and unambiguously, that its provisions or some of them are to bind the Crown, and the reader of the appropriate Act will simply look in the index for a Crown application clause. The Bill provides that it will be done by standing orders. The Amendment, I believe, in the absence of any explanation, would impose a duty on the Bill itself, which is an extraordinary legislative provision. The Amendment would cause the clause to read as follows: A Bill proposing to make any such provision as is mentioned in Schedule 6 shall do so expressly". How you impose a duty upon a Bill is a mystery to us, and in the absence of any explanation from the noble Lord, it remains a mystery. I think I have said enough to signify that the scheme in the Bill is a sensible one and I ask your Lordships not to accept the Amendment.

Lord HARMAR-NICHOLLS

I detected a certain irony in the emphasis if not in the words used by the noble and learned Lord. May I say it is because the Bill is so complex; it is because one does not really understand. In fact I do not think the noble and learned Lord himself understands quite a bit of what the Bill is supposed to mean. It has been indicated—and I have indicated it on many occasions—that there is no question of wanting to push matters to a vote, to go on fighting decisions in clearing up the Bill at this Committee stage; that one wants to reserve the right to do just that if, on examination, it is found to be necessary when we get to Report stage. I therefore thought it would be rather useful to try a procedure whereby we had the explanation first as to what words mean which would perhaps save a great deal of time.

Now that I have tried this way, I shall certainly read what the noble and learned Lord has said, and then at Report stage, with both the complex words in the Bill plus the perhaps equally complex explanation which the noble and learned Lord has given, I may be able to arrive at a decision as to whether or not we ought to vote on the matter. It may well be that this is an occasion where it ought to be expressly set out. It would not be the first time we have set a precedent on this. It would be rather interesting to see whether this new procedure which I wanted to put into operation is going to save us time and make this a better Bill, or whether we ought to revert to the old procedure of everybody saying something quite different and, at the end of the mish-mash, neither the Government Front Bench nor we who are asking the questions really knowing what it is all about.

Lord McCLUSKEY

I hope the Committee will forgive me if I lapse into irony, but usually while someone is moving an Amendment it enables the Minister to find his place in the papers and then he can give an explanation. It is not for me to instruct the Committee in its duty, but if the noble Lord, Lord HarmarNicholls, would like to do that again, I am sure we should very much appreciate it that he should make matters shorter, perhaps taking just one sentence to say, "I have put down this Amendment only in order to allow the Government to explain the position". That should be long enough.

Lord LEATHERLAND

There was one remark made by the noble Lord, Lord Harmar-Nicholls, which ought not to pass without comment. He said that he did not understand the Bill. We can all appreciate that; obviously he does not. Then he went on to say that my noble and learned friend who is in charge of this Bill did not understand the Bill. From my observation I found that my noble and learned friend has a most masterly control of this Bill and all the arguments for and against it; and he has the complete confidence at least of those on this side of the Committee in the way he is handling this measure.

Lord HARMAR-NICHOLLS

It would not be the first time that a skilful Minister, and one with charm and ability, has been able to get through something that ought never to have got through, which is complex and not understood by the people. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 315 not moved.]

Clause 23 agreed to.

Schedule 6 [Provisions in Assembly Bills requiring Crown's consent]:

3.39 p.m.

The Earl of MANSFIELD moved Amendment No. 110: Page 46, line 18, leave out from ("Crown") to ("or") in line 19.

The noble Earl said: I do not suppose that the noble and learned Lord has too many pages to turn over from consideration of the last clause to this Schedule. I hope his fingers will move rapidly because there is a point of great substance in what I am going to say. In passing, I hope it is not out of order. I see what the Government are trying to do with Clause 23: that is, considering the other various proposals which there are in the Bill for fettering the discretion of the Scottish Assembly—a slightly novel way in doing it—by imposing on the Assembly a restriction on its powers by virtue of its standing orders. I can see the point in doing it, but I should have thought that it could have been encompassed more neatly either in Schedule 10 or possibly in one of the other substantive clauses, such as Clause 19. Nevertheless, this is the way they have chosen to do it.

Paragraph 4 of Schedule 6, one of the paragraphs to which I refer, reads, in effect, that one of the bunches of desirable pieces of legislation the Scottish Assembly might wish to pass is— Any provision imposing duties on, or on officers or servants of, a Minister of the Crown …". Then we come to these words, the subject of the Amendment— on members of the armed forces of the Crown … I would like to ask the noble and learned Lord a two-fold question: In what circumstances is the Scottish Assembly going to put or impose any duty on any member of the Armed Forces of the Crown? I thought to myself that such duties would be something which would be retained, certainly by Her Majesty as part of the Royal Prorogative, if not by the central Government at Westminster. Why is it contemplated that any duties should be put on members of the Armed Forces unless it is something to do with things like flood relief or clearing snowdrifts? Secondly, why is it that this rather, shall I say, blunt way of fettering the Assembly is chosen? I beg to move.

Lord McCLUSKEY

Perhaps for the convenience of the Committee I could take these two questions in reverse order because the second question put to me raised the general significance of Schedule 6, and I can come to the question of the Armed Forces afterwards. As we have seen, the Bill confers on the Assembly a wide legislative competence over devolved matters. One has to ask the question: Can the Assembly, by passing legislation, bind the Crown? The practical answer is that the Assembly ought to be able to bind the Crown, otherwise there would be a crippling derogation from devolution.

It is normal for a Statute to contain a provision binding the Crown, but it must do so expressly. One example is that hospital land is Crown land, and because the devolved Assembly and Executive have responsibility in relation to health they must be able to pass legislation in regard to hospital land. So Clause 23 affords a safeguard to make sure that this is done expressly and with consent. The Bill must state expressly that it binds the Crown, and the Bill must not pass unless the Crown's consent has been signified. That is where Schedule 6 comes into the picture. It describes, for the purpose of the Bill, what is meant by"the Crown". This we thought was preferable to leaving existing rules of law to operate. As we can see from the Schedule itself, this refers specifically to the Crown in its private capacity, to Crown property in all its various forms, to the rule of law known commonly, if perhaps inaccurately, as Crown privilege and the Crown servants and all others who are paid by the central United Kingdom funds.

Paragraph 4, to which the noble Earl has referred, spells out in rather more detail what is meant by Crown service. The list includes members of the Armed Forces of the Crown. That does not mean—and I want to emphasise this—that the Assembly can legislate about the Armed Forces. All it means is that when the Assembly legislates within its legislative competence it may need to make some provision which affects members of the Armed Forces, and provided the Crown consent is obtained there is no reason why it should not do so.

The example which I would offer the noble Earl—and it is much less dramatic than flood relief—is that members of the Armed Forces occupy residential property in the United Kingdom and, one would expect, will continue to do so after devolution, and will do so in Scotland. The nature of their tenure, surprisingly perhaps, throws up quite a number of problems and gives rise to a remarkable amount of small litigation. There is no reason why property legislation passed by the Assembly should pass by members of the Forces. It is that kind of limited matter which we had in mind in including them in paragraph 4 of Schedule 6. I hope that that will persuade the Committee that it is a limited matter. Even with that limitation, Crown consent is required and has to be signified. I take this as a probing Amendment. I hope that that explanation will satisfy the noble Earl.

Lord HAILSHAM of SAINT MARYLEBONE

May I ask a question for information? There is at least one private army in Scotland—that is, the army recruited, maintained and commanded by my noble friend the Duke of Athol]. Am I to understand from the explanation which the noble and learned Lord has given, that it will be within the power of the Assembly to order my noble friend the Duke to move his forces to the border with England and thereby constitute a threat to this realm south of the Border?

Lord LEATHERLAND

I wonder whether the noble and learned Lord has read the Bill. This does not talk about the noble Duke's private army. It talks about members of the Armed Forces of the Crown. We all know what that means. It does not mean the Duke's private army.

Lord HAILSHAM of SAINT MARYLEBONE

It is the noble Lord himsel who has not correctly interpreted the Bill. The Schedule which we are discussing imposed a fetter on the Assembly with regard to the Armed Forces of the Crown. The fact that it is silent as to the noble Duke's army leads me to suppose that no fetter is placed upon the Assembly with regard to the noble Duke's army.

Lord McCLUSKEY

I think that the answer to this point is twofold. First, I accept what my noble friend Lord Leatherland said. The Schedule is concerned with the Armed Forces of the Crown. Whether or not the Assembly can seize control of the private army of the Duke of Atholl depends upon whether they can get it under one of the groups in Schedule 10, Part I. My own reading of the matter, off the cuff, is that they would get it in under Group 18, the development of tourism.

Lord DE CLIFFORD

Paragraph 4 of Schedule 6 says:"Any provision imposing duties". When one is in the Armed Forces of the Crown, a duty is something that one is ordered to do. I cannot quite relate what the noble and learned Lord said on the subject of domestic property to the question of duties. It seems to me that, when he says"duties", he is suggesting that the Assembly could perhaps order the Armed Forces out on riot control.

Lord McCLUSKEY

What I had in mind, in offering the explanation that I offered, was that there might be some provision about the tenancy of a dwelling under which a duty upon the departing tenant might he perfectly competent. If the departing tenant happened to be a member of the Armed Forces, then a duty would be imposed upon a member of the Armed Forces. That was the kind of thing that I had in mind. But legislation in the health field could also have an implication for military hospitals.

Baroness ELLIOT of HARWOOD

May I ask the noble Lord one question about that? There are some barracks in the county of Lanarkshire which were built during the war and which are no longer used as barracks. I think that they are let, but I am not sure to whom —certainly not to soldiers. The barracks, presumably, belong to the Army as landlords, but they are now no longer used for the Armed Forces. What happens to property of that kind? It cannot be the only property in Scotland under those circumstances as, obviously, during the war many barracks were built. What happens then? Is that a shared responsibility? Is it something which belongs to, and is administered by, the Army, or is it a United Kingdom responsibility, or does it fall to be administered by the Assembly?

I should like to return to the point that we have all been trying to make to the noble Lord—although I agree that he is nobly struggling to show us all how simple, clear, straightforward, ordinary and easy to understand all these matters are I dare say that we on this side of the Committee are all very stupid. I do not know whether we are or not. Clearly it is not easy to disentangle what is, in fact, a kind of jigsaw puzzle and try to make some kind of picture which will make sense when the jigsaw pieces are all put together.

I think that is unlikely. The noble Lord thinks that it is quite likely. Perhaps he is right. I do not know. However, I ha ve been listening with great care to all that has been, said. It seems to me that there is a great deal to be said for what my noble friend Lord Mansfield has been trying to say to the noble and learned Lord. If the Government would look at these extremely complicated, so-called co-operative efforts which will have to be made to make this Bill work, and would try to put them together in some more simple form, so that they could be understood, it would be greatly to the advantage of those who will administer this Bill, as well as to the advantage of those who are trying to understand it and who will come within its jurisdiction if it ever becomes law. I think that the complications are still very great.

3.46 p.m.

Lord McCLUSKEY

Perhaps I may just say to the noble Baroness first, that if she will look on page 50 of the Bill she will find in line 8, Group 25, that one of the devolved matters is heritable property. If she looks at Group 6 on page 48, she will find that another matter is the improvement of derelict land. She will also find elsewhere that planning is a devolved matter. Plainly, therefore, it would be within the legislative competence of the Assembly, under one or other of these matters, to make a provision which might have an effect on property vested in a Minister of the Crown—for example, the Ministry of Defence. Of course there is no devolution of defence matters, but a provision made under one or other of these matters might well have an effect upon such property.

The scheme of Schedule 6 is that if, within the area of devolved competence, the Assembly seeks to legislate, and the provision would affect such property, then that provision requires the express consent of the Crown, and it must also expressly make it clear that it does apply to the Crown. I hope that is the explanation for which the noble Baroness asked.

Lord HARMAR-NICHOLLS

I think that my noble friend Lady Elliot is on to a point in terms of this Bill eventually being understood. As to the explanation that the noble Lord has just given, I can understand that there must be Crown approval on matters to do with planning and land and matters which are identifiable as such. But when we include the words which my noble friend wants to exclude relating to members of the Armed Forces of the Crown—then it does bring it into a different category as regards understanding. I well understand that, inadvertently, in using their devolved powers, they may infringe what could be Crown Land or Crown properties. But when we bring it to the actual persons of the members of the Armed Forces, I must confess that that is not so clearly understood. I imagine that it will cause some problems to the people who have to interpret this, either in the courts or on the various committees advising the Assembly. I do not think that it can be put out, by merely quoting the clear examples that the noble Lord gave, that we remove the complexity with these words remaining as they are.

Lord McCLUSKEY

The only alternative to trying to define what was meant by "the Crown", as we have sought to do in Schedule 6, was to leave it to the existing law. That, I suspect, would be even more difficult for the practitioner. If we merely put in a provision saying that any provision in the Assembly Bill affecting the Crown requires consent, then a practitioner faced with a problem has to ask himself, "What is the Crown?" He must look through all the law books to find out what is embraced by that somewhat nebulous term. What we have sought to do is to define the Crown for the purposes of this provision. Schedule 6, therefore, enables him to have one place and one place alone, where he may look for the answer. I should have thought that the practitioner would welcome that, rather than leaving the matter vague.

Lord HARMAR-NICHOLLS

I am sorry to come back on this point, but this is an old problem that arises not only as regards this Bill. If, when we set out to define what, in this case, "the Crown"means, we inadvertently leave out some matters that would come under the heading of "the Crown", it will eventually make it extremely difficult for the matter to be interpreted. It may be better, in terms of getting the provision applied properly, to leave it to the courts, if we have not attempted to define what, in this case, "the Crown" means.

I remember, for example, that, when I held a very junior office, the civil servants wanted to alter the regulations as regards the use of Trafalgar Square. I am merely putting this forward as an example. The civil servants felt that it would be helpful if, instead of having a general statement on the plaque in Trafalgar Square saying that damage was unlawful, and would be treated as an offence and taken up in the courts, it would be better to outline those matters that were offensive. I remember that, on that occasion, they gave a whole list. For example, if someone plucked the flowers from Trafalgar Square he would be committing an offensive act; if he made a mark on the stonework he would be committing such an act; the same would be the case if he interrupted the flow of water, and so on. However, if we attempt to define everything that someone can do, for instance, to Trafalgar Square, but we leave out something which could be equally damaging, it will be extremely difficult to impose a penalty for damaging Trafalgar Square in that particular way. I maintain that precisely the same argument applies following the explanation of the noble and learned Lord. If we set out to define all that "the Crown" means, it will be an almost impossible task and we may well leave out something that we want to deal with and, as a consequence, we shall make it much more complex.

Lord SHINWELL

I am inclined to agree with my noble friend Lord Leatherland that my noble and learned friend on the Front Bench has exercised great skill in dealing with the erudite, intricate and difficult provisions of this measure. As I understand it, the purpose of the Schedules, enactments and the various provisions contained in the Bill is to define, on the one hand—I am putting this in my characteristic simple fashion—what the Scottish Assembly, when it is created, will he empowered to undertake and, on the other hand, what it will not have the power to undertake. That, I hope, has been as clearly expressed as possible—almost on a par with my noble and learned friend on the Front Bench.

I can understand civil servants being competent to undertake the tasks involved. I can understand the Secretary of State being competent, or attempting to be competent, to undertake the tasks involved. However, I am thinking more of the Member of Parliament—no, I must correct myself at once and say "Member of the Assembly"—because, as I understand it, though I am open to correction, this is not to be a Parliament as we understand the meaning of that term. I see that I am getting the assent of my noble friend the previous Leader of the House, Lord Shepherd, so I am on the right lines.

I am concerned about the ordinary Member of the Assembly. A mass of schedules with provisions and enactments of various kinds which go back many years will be presented before him. How is he to determine his function? Is he to be completely and utterly in the hands of the civil servants who are employed for the purpose of defining the various provisions contained in the Bill? I have asked those questions and I am wondering whether my noble and learned friend on the Front Bench—I cannot expect him to undertake this task at once, but he may provide an answer even if it is not completely satisfactory—can prevail on the Government to present a part of the Bill or perhaps a White Paper or an explanatory brochure which would enable the Members of the Assembly to understand what it is all about.

I must confess that, despite very long and intensive experience of Parliamentary procedure, I am quite incapable of understanding it myself. If I cannot understand it with my vast experience—I do not want to make a song and dance about that, because it was just fortuitous—how can we expect the new Members of the Assembly elected by these constituencies to make themselves responsible for fully appraising the Government's intention as to what are to be the functions of the Assembly?

I have been listening to this debate, although I may not have appeared to be doing so because I must confess—and I do not want this to be quoted in public too much—that part of it has had a soporific effect on me. I have had the utmost difficulty in keeping myself awake. As I have said, I do not want too much said outside about this, otherwise my reputation will be blasted for ever and ever Amen! However, that is how it seems to me. I should like some clarification not only so that we know what we are talking about and providing but so that we know what those poor potential Members of the Scottish Assembly will be confronted with. I hope that I am not asking too much of my noble and learned friend on the Front Bench. Having done so, I shall come to my inevitable conclusion—I shall sit down!

Lord BURTON

I am even more confused since the Minister has spoken. Paragraph 3 deals with parts of the Crown Estate. Schedule 6 is headed: Provisions in Assembly Bills requiring Crown's cosent.". Might not the Crown be put in an extremely invidious position particularly as regards the lands or fishings it holds if it had to approve Assembly legislation which was contrary to its own interests?

Lord McCLUSKEY

I presume that the answer is that it would not do so. The whole point of the provision is that, if the Assembly, which has no competence to legislate about the Crown in general, enacts or seeks to enact in a Bill something which is within its legislative competence and that provision has an effect upon property vested in a Minister of the Crown, then it requires Crown consent and the Minister will say. "No, you do not get this consent and therefore the provision cannot go forward in the Bill ". That is the plain effect of Clause 23 and Schedule 6. I do not think that it will be seen, perhaps on a second time round, to be so difficult as my noble friend Lord Shinwell disarmingly claims it will be. However, if he would like a brochure on the matter, then I invite him to apply to the First Secretary after the Assembly has been established.

Lord GRAY

I wonder whether the noble and learned Lord can give us any other example as regards how Schedule 6, paragraph 4, might come into play. I believe I am right in saying that he instanced housing and suggested that it might be a question of legislation imposing an obligation upon someone to do something. However, as I read it—and, I think, as other noble Lords have read it—it appears that there is a question of imposing an active duty on someone to do something.

I should like to raise a second point. Surely, as the noble and learned Lord goes so very much wider than "members of the Armed Forces" and in fact appears to encompass virtually every civil servant, is there not a risk—and I refer to the example given by the noble and learned Lord of housing legislation that people might escape from the net here? Every time housing legislation is passed by the Assembly do we have to identify whether or not it affects even one individual civil servant?

Lord McCLUSKEY

I should have thought that the wording was fairly plain. It might impose duties on certain persons. Another example, simply in order to illustrate the point, is that it is quite common for legislation to be passed which imposes duties upon spouses in respect of payments to their separated spouses. If the husband is a member of the Armed Forces and a duty is imposed upon him, that is the kind of matter which would require consent. I am thinking in particular of attachment of earnings, as we would call it; in other words, some attempt to impound the earnings. The exact word escapes me for the moment and I know that I shall not be forgiven for this by my Scottish colleagues; in fact, to arrest earnings in Scotland might impose duties upon the Armed Forces.

Lord HARMAR-NICHOLLS

I should like to ask the noble and learned Lord to return to paragraph 3 where my noble friend raised a point. The noble and learned Lord's explanation left me with a worry. He explained very easily that the Assembly would not have power compulsorily to purchase, for example, part of Crown lands without the Crown's consent. But if, almost inadvertently, it tried compulsorily to acquire an area of land that happened to contain part of Crown land, and the Crown had to give its consent; and if for its own reasons the Crown did not give its consent, in the kind of atmosphere which may have been built up is there not a risk of bringing the Assembly into conflict with the Crown? —so that it could be said that the Crown was putting its separate interests before the general interests of the area, as the Assembly saw them. From the noble and learned Lord's explanation one can just see the possibility that these problems could build up into something much bigger than we could anticipate.

Lord McCLUSKEY

The mechanics of dealing with the matter will be found in Clause 17. The possibility of conflict is a matter upon which noble Lords will make their own judgment. If the Assembly proposed to legislate and the legislation contained a provision which might have an effect of the kind covered by Schedule 6, one would expect consent to be sought. If consent were to be withheld, then the provision would not be enacted in that form. I suppose that that could lead to some kind of conflict, but that is no different from the present situation where the consent of the Crown has to be sought where legislation affects the Crown; the Crown signifies its consent through a Minister. I cannot imagine that the possibility of conflict would be any greater in this context than exists at the present time.

Lord DRUMALBYN

I must say that I am rather mystified by this discussion. I should have thought that Ministers of the Crown are subject to the ordinary law of whatever land they are in and that, similarly, whether members of the Armed Forces are in uniform or not, they also are subject to the ordinary law. From what the noble and learned Lord, Lord McCluskey, has said, it would seem that almost every Act which could possibly impose duties on any of these people in their ordinary capacity as citizens must have consent. Surely that cannot be what the paragraph means. It must mean the Minister of the Crown as such, or members of the Armed Forces of the Crown as such; otherwise it seems to me to be entirely otiose.

Lord McCLUSKEY

I have offered the explanations that I am able to offer at the present time. No doubt we shall look at this debate to see whether or not I should say anything further.

Lord MACKIE of BENSHIE

So far I have followed the debate on this matter with great interest and with quite a lot of understanding. In view of the explanations afforded it appears that the obtuseness, or the pretended obtuseness, of some noble Lords might even be real. The noble Lord, Lord Shinwell, said that he thought the simple Members of the Assembly would require a brochure to explain exactly how they could proceed and how they could not. That may well be so to start with. However, the noble Lord was a Member of the other place for many years and I am perfectly certain that during that time he increased enormously his knowledge of what he could do and what could be done in Parliament. Certainly, when most Members of another place first enter Parliament they have an idea of what they want to do, but in many cases very little idea of how they should do it. They gather experience as they go along from the more experienced Members of their Party, certainly from those experienced in law in their Party.

Although the complexities are great—and they must be greater in a devolved Parliament—I do not see why the provisions that we have had should not cover the eventualities, given that there is some goodwill. Of course, if there is no goodwill, it would be a paradise. Up to now the explanations of the duties of the Armed Forces appear to be quite reason- able. I await with interest further debate on this.

Lord SHINWELL

Surely the observations made by the noble Lord, Lord Mackie of Benshie, in reply to my remarks are very much in the nature of a non sequitur. He referred to those in another place being so competent and said that after a while they have some idea of what it is all about, and that not long after they enter Parliament they are fully equipped. But has he considered how often we, in this Assembly, have to amend the provisions of their Bills passed by huge majorities or in some fashion, and send them back? This Bill is an example. Therefore, they cannot be as competent in matters of procedure or in defining what an enactment really means—what is behind it all—as he makes out. It is very difficult indeed. I should like to see a form of autonomy for the Scottish people which is not complete independence but which gives them more say in matters affecting the United Kingdom than apparently has been the case, in their opinion, in the past. Nevertheless it seems to me that any number of difficulties will arise when the Bill is passed, if it does pass.

The Earl of MANSFIELD

When my noble friend Lord Colville of Culross and I discussed this proposed Amendment before we tabled it, I do not think we ever contemplated that the noble Lord, Lord Mackie of Benshie, would once more be able to reduce it to a matter of goodwill. It just shows that one can do almost everything if one tries hard enough. Still less did we think—and I do not suppose that the sponsors, still less the draftsman of the Bill ever thought—that Schedule 6 might possibly be held to appertain to the Atholl Highlanders.

But, in fact, the intervention of my noble and learned friend Lord Hailsham of Saint Marylebone was less frivolous than might at first bluff appear because the army in which I have the honour to serve —that is to say, the Atholl Highlanders—has the same sort of delightful topsy-turvy inconsistency as parts of this Bill. For instance, I, who never rose beyond a second-lieutenant in the Scots Guards during my National Service, am now a captain, whereas a previous major-general in Her Majesty's Forces is still only a private and unlikely to rise beyond that rank. However, that is something that is sensible only to my noble kinsmen.

I asked a short and, I thought, quite logical question: what does this Schedule contemplate would be the duties which would be imposed on members of the Armed Forces of the Crown? It is a perfectly simple question and it was one which I thought would be delivered of a simple and fairly short answer. In fact we have been regaled with a great deal about housing, and, finally, to my intense surprise, attachment orders in divorce proceedings. I really do not think that it is contemplated imposing on the Scottish Assembly a standing order that, whenever it passes a measure which could possibly affect a citizen who happens to be in the Armed Forces, such as the attachment of their earnings if their marriage runs into difficulties, the procedure in Clause 23 of this Bill has solemnly to be gone through ending up with the blessing of the Secretary of State. I simply do not believe it, but I suppose I must be corrected on this.

I hope that the noble and learned Lord will confer with those advising him to see whether his instructions in this matter are what they appear to be. It may be that we could have a word on the subject later, or he could write to me. It has been an interesting debate, but I have absolutely no hesitation in begging leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

4.11 p.m.

The Earl of MANSFIELD moved Amendment No. 111: Page 46, line 24, leave out ("at the coming into operation of this paragraph"). The noble Earl said: I scarcely dare to move this Amendment. In the same Schedule, paragraph 6 this time, the same slightly obscure provisions relate, … to the care and preservation of, or access to, records in the custody of the Keeper of the Records of Scotland ", and then the words which are complained of in the Amendment, "at the coming into operation of this paragraph, except court records and private records". I have two questions, and I hope again that they might be short ones for the noble and learned Lord. That paragraph seems to imply that, whereas the provision will relate to what is in the custody of the Keeper at the coming into operation of the paragraph, after that—that is, after the paragraph comes into operation—there shall be no such duty. Arising from that, what is the nature of these records which are contemplated in the Schedule, and why has this particular provision been expressed in the way that it has? I beg to move.

Lord McCLUSKEY

I think it is necessary to look at certain other provisions in order to answer that adequately. In relation to pre-devolution court and private records, and all post-devolution records relating to devolved matters, the Bill provides for full legislative and executive devolution. That can be seen not here but in Group 24 in Part I of Schedule 10. That group has a bearing on Amendment No. 358 which the noble Lord, Lord Drumalbyn, may he moving. Secondly, in relation to pre-devolution records other than the court and private records in the custody of the Scottish Record Office, the Bill provides that the Government have a control over legislative action by the Assembly (that is, paragraph 6 of Schedule 6), and over executive action by the Scottish Executive (that is, paragraph 1 of Schedule 16 on page 79).

In relation to post-devolution records related to Scottish matters which are not devolved, these can, under the Bill, be consigned with appropriate safeguards to the Scottish Record Office under an agency arrangement of the kind provided for by Clause 32. In general, therefore, the Government have been concerned, in making these arrangements, to ensure that the Scottish Record Office will continue to he the national archive and the national repository for all important public and private records related to Scotland.

The Amendment seems to us to place an undesirable and unnecessary restraint on that aim. The Bill provides that the Assembly will be required to seek Crown consent to Bills affecting pre-devolution records. This Amendment extends this requirement to post-devolution records related to devolved matters. The Government believe that this is unnecessary and indeed contrary to the whole approach of devolution, representing, as it appears to do, an untrusting attitude towards the Scottish Administration. The Assembly ought to be free to decide what is to happen to their own post-devolution records.

The Earl of SELKIRK

Should it not read "the coming into operation of this Act"? Is it contemplated that this paragraph will come into operation at some other time than when this Act in fact comes into operation?

Lord McCLUSKEY

I think I am right in saying that different parts of the Act may come into force at different times.

The Earl of SELKIRK

It is contemplated that the Act may come into force at different times?

Lord McCLUSKEY

The possibility is contemplated that it might come into force at a different time for some reason that one cannot foresee. We are simply making provision for the possibility.

Lord HARMAR-NICHOLLS

Is the noble and learned Lord saying that consent would need to be sought on records post the coming into operation of this paragraph of the Bill? He said that that is covered in Clause 32 under the agency arrangement.

Lord McCLUSKEY

No, what I intended to say was that agency arrangements can be made under Clause 32 so that post-devolution records relating to Scottish matters which are not devolved can be consigned.

Lord HARMAR-NICHOLLS

Under Clause 32 arrangements may be made. There is no suggestion that an agency arrangement will be made to achieve what the noble and learned Lord said. Therefore, it means that they have to go through another phase before they can put into operation a decision which is considered to be a worthy one?

Lord McCLUSKEY

It would be quite inappropriate to legislate that arrangements shall be made. One has to specify what shall be done. I think it is correct to legislate, as Clause 32 proposes, that arrangements may be made. Again one envisages that it will be the desire of all that the Scottish records will be kept in the Scottish Record Office. Therefore, arrangements will be made, and Clause 32 allows the arrangements to be made.

The Earl of MANSFIELD

The noble and learned Lord has at any rate satisfied me that there is merit in this paragraph. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.18 p.m.

Lord DRUMALBYN moved Amendment No. 358:

Page 46, line 25, at end insert— (7) Any provision relating to the care and preservation of, or access to the records of any body whose functions are matters which are partly but not wholly within the legislative competence of the Assembly in so far as those records relate to matters which are not within the legislative competence of the Assembly". The noble Lord said: This is an Amendment which would have been intricate but for the explanations which the noble and learned Lord has already given. The point is quite a short one. As he has said, the records of devolved matters will be w ithin the control of the Scottish Assemble. That means that they can pretty well do what they like with them. He went on to say that—and this is as from the date when the Assembly comes into operation—agency arrangements can be made for the custody, because in paragraph 6 we were talking about the custody and preservation of the records.

This still leaves open the question of what happens or, more importantly, what could happen to the records of bodies which are outside the scope, or partially outside the scope, of the devolved matters. By the Bill's terms, certain local authority functions will be outside the Assembly's legislative competence, and that will also be true of other agencies wholly or mainly relating to Scotland. For example, the Assembly will have only partial competence in respect of the Scottish Development Agency and none, as I understand it, in respect of the Highlands and Islands Development Board.

For this reason, the Assembly would be unable to legislate in respect of Scottish local authority records or those of any Scottish agency or body not entirely subject to the Assembly's legislative competence; local authorities will have some functions within the competence of the Scottish Assembly and there will be some on which it will rely, so to speak, on the Secretary of State. I understand that these records are likely to be kept by the Keeper in Scotland. All we are talking about is whether the Assembly should have power to legislate about that kind of record without the consent of the Crown. I beg to move.

Lord McCLUSKEY

I am not certain whether I have followed the point, but, if I have, the answer may be found in Group 24 and at the top of page 50. What we are talking about here is the legislative competence of the Assembly, and the legislative competence is defined principally in relation to the devolved matters which are set forth in Schedule 10, Part I. Group 24 relating to public records reads: Records of the Scottish Assembly, the Scottish Executive and the courts and of the body created by or under any Scottish Assembly Act or whose functions are matters which are wholly within the legislative competence of the Assembly". It is the word, "wholly" on which I fasten. The legislative competence in respect of public records in Group 24 is confined to bodies whose functions are matters wholly within the Assembly's compete nce. In other words, the records of bodies whose functions are partially within the competence of the Assembly are reserved and the Assembly has no legislative competence over them. In relation to how such records will be dealt with, that becomes a matter of discussion between those responsible—the Government who are responsible for the records, or whoever may be, and those who keep the records in Scotland—so appropriate arrangements can be made that are mutually satisfactory.

Lord DRUMALBYN

I understand the noble and learned Lord to be saying that there would not in any case be any chance of the Scottish Assembly legislating on matters which are not wholly within its competence so far as the keeping of records is concerned, and therefore the question of consent would not arise. Is that right?

Lord McCLUSKEY

That is exactly right.

Lord DRUMALBYN

I am obliged to the noble Lord and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 6 agreed to.

Clause 24 [Preservation of order]:

Earl FERRERS moved Amendment No. 112: Page 12, line 8, leave out ("may") and insert ("shall"). The noble Earl said: On an earlier Amendment I could not help but find myself in agreement with the noble Lords, Lord Leatherland and Lord Shinwell, when they admired the way in which the noble and learned Lord, Lord McCluskey, had been dealing with this complicated Bill. We admire it as well; he certainly appears to have a remarkable understanding of the Bill and therefore is probably at a greater advantage over some of us. The way in which he has succeeded in moving from one subject to another has been most impressive.

Accordingly, I would not wish to disadvantage him by not explaining to him in detail what this Amendment is about, and it might he convenient if we discussed at the same time Amendment No. 113. Clause 24 refers to the preservation of order in the Assembly and the standing orders in relation to the preservation of order, but it says only that the standing orders of the Assembly "may" include provision for the preserving of order. I think that the preservation of order in such an Assembly is a fundamental objective; it should be obligatory on the standing orders and not just voluntary.

Lord McCLUSKEY

Perhaps I might intervene at this stage to tell the noble Earl that he has already convinced me; I shall accept both of these Amendments.

Earl FERRERS

That is an object lesson to my noble friend Lord HarmarNicholls, and perhaps the noble and learned Lord will find it possible to accept some of my noble friend's Amendments. I am delighted with the Minister's acceptance and I hope it bodes well for the future.

On Question, Amendment agreed to.

Earl FERRERS moved Amendment No. 113: Page 12, line 10, leave out ("including") and insert ("and may include").

The noble Earl said: This is consequential. I beg to move.

On Question, Amendment agreed to.

4.26 p.m.

Earl FERRERS moved Amendment No. 114:

Page 12, line 11, at end insert— ("Provided that such provision shall only take effect if a resolution is passed on a division, and the members voting in favour of it number not less than two-thirds of the total number of members of the Assembly (including any whose seat is vacant).") The noble Earl said: As this Amendment is on an associated subject, perhaps the noble and learned Lord will be able to accept it, too. If not, I have no great hopes for this Amendment. However, the Bill makes provisions for the standing orders to allow for Members to be excluded from the Assembly. Of course, to exclude a Member from the Assembly is a dramatic thing to do because it is really to disfranchise a number of constituents. In any event, the person concerned must have done something fairly bad if he is to be, as it were, chucked out of the Assembly.

We must be careful to ensure that a majority Party should not use its influence to throw out Members of a minority Party. Therefore at the beginning they should not, assuming there were a majority of the Assembly belonging to some way-out Party, so adjust the standing orders to enable it to be easy for Members to be excluded from the deliberations. I seek by the Amendment not to say that two-thirds must vote for a persons to be excluded before he is excluded but that two-thirds of the Members of the Assembly should vote for the rule which says in what circumstances a Member may be excluded; it is to make certain that a fundamental course of action such as the exclusion of an Assemblyman should have a large percentage of acceptance by the Assembly.

Lord McCLUSKEY

I wish at the outset to acknowledge the kind words which the noble Earl used in addressing himself to the last two Amendments. In relation to this Amendment, I am indebted to him for making it clear precisely what he has in mind because the wording of the Amendment is somewhat ambiguous. Accepting that what he has in mind is that the standing orders must be approved by two-thirds of all Members of the Assembly, then we think it is possible to envisage circumstances in which such a majority could not be secured for an adequate set of provisions if various groups of Members—not necessarily united in why they are opposed to particular provisions but united in opposing provisions—objected to certain, albeit different, features. The outcome could be that, for quite some time, the Assembly would be denied sufficient provision for the sensible conduct of its proceedings.

Apart from that technical, but perhaps real difficulty, I would suggest that, as a matter of principle, it is not desirable and acceptable to impose such voting tests on the Assembly in relation to a matter as internal to the Assembly as this. Such voting requirements, or voting tests, have played no part in the development of Parliament itself, and they have no precedent of which I am aware in any other democratically elected body in the United Kingdom. Such an imposed test would, therefore, in our view, be offensive to the Assembly, and cannot really be justified. We believe that the Assembly should be left free to determine its own means of approving standing orders. It is seen that the Assembly will be a responsible elected legislature, and we do not think that any other approach can properly be adopted in relation to such a body. Therefore, for those reasons, I would invite the noble Earl to consider whether he wishes to press the Amendment.

The Earl of PERTH

Before any other noble Lord speaks, I should like to ask a question for clarification. Does the provision, as moved, relate only to the exclusion or a Member, or does it relate also to the standing orders?

Earl FERRERS

I should like to answer that point, and I should be grateful for the opportunity to do so, because I thought that that was what the noble and learned Lord, Lord McCluskey, had got wrong. In fact, the proposal was supposed to refer only to the exclusion of Members of the Assembly, and not to all the standing orders. I absolutely agree with the noble and learned Lord that, if the standing orders are to be devised by the Assembly, they should be acceptable to the Assembly. The noble and learned Lord said that the trouble was that if the figure of two-thirds—in other words, my Amendment—were accepted it might be difficult to get an adequate majority for that. There, I thought that he was making the point which I had in mind. It is that if over 50 per cent. of the Members of the Assembly agree that the standing orders relating to the discharge of an Assembly Member should be such—but only just over 50 per cent. agree, rather than 66 per cent. as I have suggested—a majority Party could unduly use its influence against some minority Parties.

One would have thought that, if the standing orders which permit the chucking out are to be so reasonable, it ought to be possible to get a 66 per cent. majority. If it is possible to get a bare 50 per cent., that would imply that a number of other people—very nearly 50 per cent.—would not agree with the proposals. Therefore, they would not be agreeing with the proposals by which they could be chucked out of the Assembly and their constituents therefore disfranchised. That was the point I had in mind. I readily admit that it is not a point of great substance, but I wonder whether the noble and learned Lord would like to think about it again, or give a revised considered answer.

Lord DRUMALBYN

I should like to make a quick comment on a matter of drafting. I wonder whether the noble and learned Lord had his brief drawn up —if it was drawn up—before he accepted the earlier Amendment to substitute the words "and may include". In that case, the phrase "such provision" would undoubtedly have related to the first provision. But once the Amendment has been made, surely, on ordinary construction, the phrase "such provision" would refer to the second provision. In other words, it seems that, as now drafted (the Amendment having been accepted) the provision would relate only to the exclusion of a Member.

Lord HARMAR-NICHOLLS

I should like to support my noble friend on that point. I think that the accepting of the previous two Amendments should have altered the brief which the noble and learned Lord is using as a guideline. Even taking into account his explanation, it could be that one would be helping the Assembly by being a little more specific on this important point. The noble and learned Lord said that perhaps the Assembly would find it insulting—or he used words to that effect—if such an instruction were included in the Bill, but I wonder whether the Assembly would. He said that no other Assembly he knows of is in this position. He referred to the other place, and I suppose he also had in mind certain authorities which are presided over by a Mayor.

However, they have precedents on which to work. They have reached a position in which they know how they can exclude members, and in some cases this is based upon centuries of experience. But here we are concerned with a new Assembly, with no tradition to guide it as to how it ought to draw the line or how it should safeguard the freedoms of individuals in order to avoid their being excluded. The Assembly is new, it will be treading new ground—ground which, as I have said many times, will be very dangerous and possibly filled with dynamite, so it could be that we have a special responsibility to be a little more specific than we otherwise would. The Assembly has no tradition or precedents on which to work, so we may be doing it a good turn if we lay down a little more rigidly how people can be excluded. To exclude a vote on a vital issue could mean much more than excluding a Member.

Lord McCLUSKEY

I hope that I am not wrong on this, but I do not think that the acceptance of the Amendment makes any difference in relation to whether or not the standing orders will include provisions for excluding a Member from such proceedings. As drafted, the Bill says, in effect, that the standing orders may include provision for excluding a Member. With the earlier Amendments it provides that the standing orders, shall include provision for preserving order…and may include provision for excluding a member …". So I do not think that there is any difference in relation to the excluding of Members. However, be that as it may—

Lord DRUMALBYN

The noble and learned Lord has not quite got my point. I entirely agree here with what my noble friend said. I understood that he was really concerned about the exclusion of a Member. All I am saying is that I think the change in the drafting makes that purpose valid, although it may not have been valid, and may have applied to the standing orders as well, if the change had not been made.

Lord McCLUSKEY

I am obliged to the noble Lord. I am sorry if I misunderstood the presentation of the matter by the noble Earl at the beginning. I should like to turn to what I now understand him to have in mind. The purpose of this Amendment would be to ensure that two-thirds of all the Members of the Assembly must vote for the exclusion of a Member who has been judged to have contravened standing orders to a degree that could justify his exclusion on grounds of order—

Earl FERRERS

May I interrupt the noble and learned Lord again? I realise that 1 have not made myself at all clear, and I am sorry. This proposal does not do what the noble and learned Lord suggests, which is that, where it is suggested that a Member be excluded, then two-thirds of a majority shall vote. The Amendment is designed to secure that, upon the standing order which depicts how a Member shall be excluded, that vote shall have the concurrence of two-thirds of those voting. In other words, the standing order which depicts on what terms a Member shall be excluded should have more than a 50 per cent. acceptance.

Perhaps I may help the noble and learned Lord a little further on this while he considers the answer. The point is the very one that he made earlier: if it is diffcult to get a two-thirds majority, and only a 50 per cent. majority can he obtained, then the chances are that many people—very nearly 50 per cent.—would not be agreeing with the way in which a Member should be excluded. That is why we hope the Government will see their way to including this Amendment.

The Earl of PERTH

May I please again ask for clarification? As I read the Amendment, it is now said that Members voting in favour must be two-thirds of the total membership of the Assembly. I can imagine a situation when, for one reason or another, quite a number of Members are absent from the Assembly. In those circumstances, would it mean that a Member could not be excluded? If we are to insist upon two-thirds of the total of the Assembly, that would make it very difficult to ensure that law and order is kept.

Lord MACKIE of BENSHIE

The provision reads to me as though it referred to the actual act of exclusion of a Member who had misbehaved.

Lord HARMAR-NICHOLLS

If it is intended to refer to the acceptance of the standing orders, then I think that the noble Earl, Lord Perth, has perhaps confirmed the need for this. I should have thought that, if there was one occasion upon which Members of any Assembly ought to be expected to turn up, it would be when they would be setting out the rules by which they would have to live ever after. I think that, when they are laying down the standing orders, whatever they are going to be —whether they are going to leave the power to exclude to the chairman, to a special committee or to a general vote—one would be entitled to expect a sufficient number of Members to be there to be able to say two-thirds or whatever percentage it was wanted to put in to identify it. Afterwards, if it referred to the exclusion of a Member, then the noble Earl's comment would be justified, because you could not guarantee that the individual who ought to be excluded would "kick over the traces" while there was a full house, so to speak. So if this means that they must have two-thirds in order to get the standing orders agreed, then I think that that is very helpful; but if it means two-thirds in order to get a Member excluded, then there may not be very many people in the Assembly, and that ought not to be accepted. We therefore ought to have clarified what it means. If it means the standing orders, then it will have my vote in support: if it means the exclusion of a Member, it will not. It is as simple as that to my mind.

The Earl of MANSFIELD

Surely it is not as complicated as all that. The circumstances in which this Amendment would arise would be when the Assembly, presumably at an early stage of its life, is considering its standing orders and wishes to consider certain courses of conduct which would lead to the expulsion of a Member. That, the Amendment says, would need a two-thirds majority of the total number of Members of the Assembly in order to make it what I might call an offence. My noble friend behind me says that that is right, and I think it is. It seems to me that that is an eminently sensible provision to write into the Bill. It does not mean that if somebody starts misbehaving—of course, it would be on the Back-Benches and a "Yahoo-ish" Member—it needs two-thirds of the Assembly to get him out. What it means is that when these things are considered early on in the Assembly's life they should be given the proper consideration.

Lord BURTON

If, as the noble and learned Lord has said, the Assembly is to be a responsible body, then surely, if anything is to be devolved, the formation of this sort of standing order is something which ought to be devolved on to the Assembly. Surely we should let them form their own resolutions on this.

Lord McCLUSKEY

I entirely agree with that. Indeed, I thought I had said so. Perhaps, when I was talking about this, I used the quite general term "the maintenance of order", but, accepting that what is proposed here, as now explained, is that a provision in the standing orders providing for the exclusion of a Member must get a two-thirds majority before it can appear in the standing orders, then I think the general answer that I offered, and which the noble Lord, Lord Burton, has given, applies. One has no real precedent for this in relation to an elected and responsible body, and it would, I think, be offensive to such a body to require them to have such a majority. I do not think I can say any more about it than that, other than perhaps to say that if what is contemplated is that there will be such an abuse of standing orders and of power within the Assembly that people who should not be excluded are in fact being excluded for political reasons, then one would have thought that the political checks upon that would be quite draconian, and any Party which so abused its majority in the Assembly as to prevent others from legitimately taking part would suffer very heavily at the polls.

Lord DRUMALBYN

May I make a suggestion on this? I think there is a difficulty about the use of the word "excluding", because very often this happens in two stages. At the first stage, you may name a Member, to use the procedure of another place, the Member will then withdraw and he is excluded from those actual proceedings but not from "such proceedings", which is a much broader term continuing over quite a period, perhaps. Then there is a second stage in which he may be suspended altogether. I am bound to say that I see these two meanings of immediate withdrawal from the Chamber in the case of a failure to maintain order and then further action afterwards, possibly in connection with order or general conduct, for the suspension of a Member. I should have thought that if we were going to have any provision at all for this, both these cases should be covered. This is not relating only to the Amendment. I think that, in the standing orders, any provision such as we are talking about for expulsion or suspension over a period of time should have a substantial majority. I think my noble friend is quite right here; it is a very important matter. But this is quite a different matter, and I am just saying that I think the word "excluding" ought perhaps to be reconsidered in the Bill as it now stands.

Lord McCLUSKEY

I wonder whether I might say this. This was one of the matters which was debated in another place, and certainly the judgment of the Government—and I think they were not alone in this—was that some such provision was necessary in the Bill because it may be that, if there was no such provision, a person who was excluded from proceedings might have a remedy in the courts, and say that there was no power to exclude him. So there has to be some such provision. The way the Bill envisages this being done is to say, "There must be such a provision; here it is, but the details we leave to the Assembly." The detail that the noble Lord, Lord Drumalbyn, has in mind, distinguishing between the particular proceedings and all proceedings, and so on, is surely a matter that one would envisage leaving to the standing orders of the Assembly, as Lord Burton also envisaged.

The Earl of SELKIRK

There is just one point, I think, Of course, the word "excluding" is a different word from "suspending". I do not think the other place can exclude a Member permanently from sitting there, subject to certain crimes having been committed, possibly. Suspending him is a different matter. There is a very famous story about John Wilkes, when the House tried to exclude a Member and it was absolutely futile. I would have thought that the noble and learned Lord might consider the word "suspending" instead.

Lord HARMAR-NICHOLLS

I think there is a little more to it than the noble and learned Lord seems to be accepting. It is a new Assembly and it is in a field where there is this grave risk of controversy, because those for or against the whole idea are very evenly divided. On the question of either "excluding "or "suspending" a Member from a duty to which he has been elected, I would have thought that we ought to write it in. We have made it quite clear now—the Amendment has been accepted—that the standing orders must include provisions for doing this; and I would not have thought there was the same ground for thinking that they would feel insulted about it when one remembers that the other place have already written in (and we have accepted it) a referendum requiring 40 per cent. of the electors. There is a kind of precedent there, if you like, for Parliament giving a clear indication of the sort of thing they want in terms of percentages. They think that before this Bill ,when it is an Act, is accepted, it must have a 40 per cent. referendum support. I am saying, on a lower level, that before you give anybody the power to exclude or suspend an elected Member there ought to be a standing order which has had at least two-thirds of the Assembly's vote to say that that power ought to be given to whoever has to put into operation the actual exclusion or suspension.

The Marquess of LINLITHGOW

I am a little worried. May I ask a question of the noble Lord, about what happens if in fact the two-thirds majority is not obtained? Does that mean that there will be no standing orders concerning this particular question of expulsion, and so on?

Earl FERRERS

I am grateful, first, to my noble friend Lord Mansfield for having put succinctly, in one shot and in about 15 seconds, what it took me about three attempts to explain, and he put it perfectly correctly and perfectly clearly. It is that, before any standing order is passed in which it is portrayed how a Member should be excluded, then that standing order should have a vote of two-thirds of the Members of the Assembly. I would have thought that this was desirable. My noble friend Lord Selkirk referred to the differences between excluding a Member and suspending a Member, and one does get into a very great deal of difficulty, as we have seen in the recent past from what has happened sometimes in another place. This is difficult, and the only purpose of this Amendment is to say that, where they have these standing orders, let us make quite certain that they really have the full backing of the Assembly.

My noble friend Lord Burton said, "Leave it to the Assembly to decide". Of course we are leaving it to the Assembly to decide. My Amendment would not alter that. The Assembly should decide exactly how this should be done. All that we are suggesting is that there should be a two-thirds majority. If my noble friend, Lord Linlithgow asks, what happens if it does not? The answer is that the Assembly must provide such a standing order as would get a two-thirds approval.

I come back to the point that the noble and learned Lord, Lord McCluskey, made at the beginning. At the end of his last reply he said that he thought that his initial reply stood. His initial reply was that it may be difficult to get two-thirds approval whereas it may be possible to get a 50 per cent. approval. If one could visualise a situation where one gets 51 Members of an Assembly agreeing to a principle as to how a person should be disenfranchised and 40 not agreeing, then I should have thought that was sailing close to the wind. Would the noble and learned Lord be prepared to look at this question again and consider the remarks that have been made to see whether he considers that this is a reasonable suggestion?

Lord McCLUSKEY

I can make it clear that we arc satisfied with the provision in the Bill. It is not I alone who have given reasons for that. To answer directly the question asked by the noble Marquess, Lord Linlithgow, if you could not get a two-thirds majority of the kind envisaged by the Amendment you could not have a provision in the standing orders for excluding a Member. The answer which the noble Earl has put forward, that you must then write a provision that will command a two-thirds majority support, is only a partial answer. It presupposes that there will be a two-thirds majority for some particular provision. It may be that one could go for a long time before it would be possible to have a provision excluding a Member from participation in the proceedings.

I should like to make a general point in defence of the position. You cannot constantly approach the Assembly as a nursemaid approaches a child. The Assembly must be given an opportunity to demonstrate its responsibility. If we give it a walking frame of this kind, it will never learn to walk on its own two feet.

Lord SHEPHERD

May I add a word or two here? I have had some experience of Constitutions. The proposal that we are now discussing is based, first, on a trust that the Assembly will behave responsibly and, secondly, that the Scots are sufficiently advanced in constitutional procedure as to be able to make this work. In terms of Colonies —and I have had some experience—I know of no colonial Constitution providing for an elected Parliament which provides that there is a need to have a two-thirds majority for either standing orders or a change in them. It has always been recognised that in Parliaments of the Colonies when they have moved to independence that the standing orders should be those that the Assembly or the Parliament itself so wished, and based on a simple majority, exactly as in another place.

Earl FERRERS

The noble Lord, Lord Shepherd, and the noble and learned Lord, Lord McCluskey, were persuasive in their arguments. I will consider what has been said, and beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 24, as amended, shall stand part of the Bill?

4.55 p.m.

Earl FERRERS

May I ask the noble and learned Lord some questions about not just Clause 24 but about this part of the Bill which is headed: Standing orders—particular provisions. In Clauses Nos. 24, 26 and 28 the word "may "is used whereas in Clauses Nos. 23, 25 and 27 the word "shall "is used. In this particular clause it did say: "The standing orders may include provision ..". It now says: "shall include provision …". I would ask the noble and learned Lord what is the difference between "may" and "shall". I do not expect a fourth-form answer. I realise there is a difference in so far as one is mandatory and one permissive. Where the standing orders say that they "may" include these provisions, does it mean that they may include these provisions but that they need not include them? Or does it mean that the standing orders may include these provisions and may not include any additional provisions?—because one wonders what will happen if the standing orders do not include provisions which the Bill actually specifies.

If the Bill specifies certain provisions, presumably one infers that the provisions are so important that they should be put into the standing orders. If they are so important as to require mentioning in the Bill, should not they be equally so important as to need mandatory requirements that they should be in the standing orders? What I want to know is whether, where the word "may "is used, it means that the standing orders may include provisions'but need not; whether it means that the particular provisions to which it refers are the only ones which may be included, or whether others may be included also.

Lord McCLUSKEY

There is nothing in the Bill to stop the Assembly from making standing orders on matters which are not specifically touched upon in any of the particular clauses. "May" means "may but need not" in this context. It does not mean that if there is no contemplation within the Bill of a particular order of a particular kind the Assembly has no competence to make such a standing order. I think we have been over this before when discussing Clause 7. What one sees here can be divided into two parts. There are mandatory standing orders as required by Clauses 7(1), 23, 25 and 27 for essential matters; they make explicit what is imperative, what must be done. Then there are permissive standing orders required by Clauses 24, 26 and 28. To put it colloquially, what the Bill does is to give the Assembly a nudge and to say that it would be sensible to have provisions of this kind. What the Bill does not do is to say, "If you think of something else that you would like to put in your standing orders, you cannot have it".

Earl FERRERS

I am grateful to the noble and learned Lord for putting it in such easy language. I thought it probably meant that where the word "may" was used it was to jog the draftsman's mind as to the kind of things that ought to be included. As I understand it from the noble and learned Lord, they can include those things but they need not; but they can also include a lot of things not mentioned in the Bill. I am grateful to the noble and learned Lord.

Clause 24, as amended, agreed to.

5 p.m.

Earl FERRERS moved Amendment No. 345: After Clause 24, insert the following new clause:

Stages of Bills

(".The standing orders of the Assembly shall include provision—

1. (a) for general debate on a Bill with an opportunity for members to vote on its general principles;
2. (b) for the consideration of, and an opportunity for members to vote on, the details of a Bill; and
3. (c) for a final stage at which a Bill can be passed or rejected.").

The noble Earl said: This Amendment seeks in general terms to suggest that the standing orders of the Assembly should include the broad types of methods by which Bills should be processed through the Assembly. I should have thought it was fairly desirable that Parliament ougnt to know what kind of methods should be undertaken by the Assembly. How a Bill is dealt with is of supreme importance. In the Houses of Parliament we have a system whereby you debate the general concept of a Bill at Second Reading, and then have the ability to go through it line by line on Committee stage, and again on Report, and again you discuss the whole Bill as amended. Clearly, on the way in which standing orders of either this House or the other place are drawn up, depend how the Bills are considered and also the outcome. I should have thought that it would be desirable for us to suggest that some kind of regimen should be adopted by the new Assembly.

Having said that, this Amendment does not say that there will be exactly the same types of processes as we have in Parliament, but it just gives the general lines upon which the Assembly ought to draw up its standing orders. In the White Paper, Our Changing Democracy, the Government indicated exactly what they had in mind. It said: Either the Executive or individual Assembly Members will be able to introduce Bills". Then it went on to say: The Act will lay down in broad terms various stages for the handling of legislation by the Assembly. There will be:

1. a. a general debate on each Bill, with an opportunity for Members to vote on its general principles;
2. b. consideration of, and an opportunity for Members to vote on and amend, the details of the Bill;
3. c. a final stage at which the Bill can be passed or rejected but not amended.

Further elaboration of the procedure will be left to the Assembly's own Standing Orders". That is in the Government's White Paper. that same principle appeared in the Scotland and Wales Bill. For some curious reason, it does not appear in this Bill. I should like to ask the noble and learned Lord what has happened to make the Government change their mind from what they thought was the right thing to do in the White Paper and what they thought was the right thing to do in the Scotland and Wales Bill. What is now different? Do the Government anticipate some different provisions being made to what they had thought of previously? Is it not desirable that Parliament should indicate the type of lines upon which the Assembly should conduct its affairs? I beg to move.

5.3 p.m.

Lord McCLUSKEY

If I may respectfully say so, the noble Earl is perfectly right to ask this. As he said, the authors of this clause are the Government themselves, because this was the clause contained in the Scotland and Wales Bill, with a few words slightly different. The position really is that, having reconsidered the matter in the light of criticisms made, both at the time of the publication of the original White Paper in November 1975—the one which contains paragraph 54 which the noble Earl quoted—and in the light of criticisms made in the debates on the Scotland and Wales Bill, the Government came to the view that this was a kind of "apron strings" provision once again; that we were seeking to tell the Assembly how they ought to conduct their business when that was a matter properly for them.

The Government do not have any doubt that the Assembly, when they come to consider their procedures on this kind of matter, will wish to draw upon Parliamentary experience in devising those procedures and in devising the necessary safeguards. As the noble Earl recognised —and he was not seeking to say otherwise —there is no compelling reason to tie them to Westminster procedures. There may be very good reasons for departing from them. I have in mind particularly that there is no second Chamber in relation to the Scottish Assembly—that is one point—and therefore one might have to have different provisions to take account of that. Secondly, we have the kind of procedure here which causes a Bill to die at the end of a Session. They may want to have different provisions about something of that kind.

Obviously, they will have to look afresh at these matters. I do not doubt that they will look carefully at Parliamentary experience. One supposes that they will adopt this kind of structure which we regard as an essential structure. It is a matter for them and, unless we are once again to be nursemaiding them, I think that the Government's second thoughts on this matter are rather better than their first thoughts, as expressed in the Scotland and Wales Bill.

Lord HARMAR-NICHOLLS

What bothers me about the noble and learned Lord's replies to all these clauses is the phrase about the apron strings and nannying it through. He gave the clue to the need to do a bit of nannying—if that is the right word—when he said that the Assembly will not have a second Chamber. The other place, with all its resources and guidance, has—thank heavens!—a Second Chamber which can help do the thinking and undertake some revising for them. The noble and learned Lord has said that the Assembly will not have a second Chamber. In the absence of that, I would have thought it was not tieing apron strings to suggest the general line upon which they ought to pursue their powers that we are giving them under this Bill.

I notice, in terms of leaving the Assembly to do everything, that we apparently have no problem. Clause 25(2), we say that, if anybody takes part in any proceedings in contravention of any provision of the standing orders, they are liable to a summary conviction and a fine not exceeding £500. If we can be specific enough to tell them how much they are going to be fined if they infringe standing orders, I would not have thought that it was tieing apron strings to give some guidance, based upon the experience of the two Houses of Parliament, on these various clauses.

It might be good for the other place and your Lordships' Chamber if, with the atmosphere that has developed over the past 40 years, there was greater guidance as to what we can and cannot do, instead of leaving it to the uncertainties of precedents, and so on. I would not argue at this moment as to whether or not the particular clause my noble friend wants to reinsert is the right one. but I hope that the noble and learned Lord is not always going to say that we must not do our duty, in the light of our experience as a Chamber, because somebody who is not yet elected and an Assembly which is not yet formed might find it slightly offensive that we had given them the advantage of our experience. I do not think that that is a good answer. We want a stronger answer before we refrain from giving the benefit of an experience which is very real in trying to run, not totally similar Assembly one which is not dissimilar, although it has extra powers.

Lord GLENKINGLAS

Like my noble friend, I am a little puzzled about the changes of mind which the Government have had between the White Paper, the Scotland and Wales Bill and this Bill. The noble and learned Lord tells us that they have had conversations, objections and so forth. This may well be so. As my noble friend has said, we have some responsibility for taking action to help these people when they start—as I hope they will—a successful Assembly operation. I do not have this terrible feeling about nannies' apron strings because a great many of the best people in the country have had the advantage of some tough old nannies to look after them.

The other matter which is relevant in these terms is that we are setting up an Assembly which will have an election. At the end of the election a person will be nominated as its Chief Secretary, First Secretary, or whatever the title is. The Assembly will then have to sit themselves down in circumstances often, I have no doubt, of considerable tension and confusion in order to decide what their legislative programme for the year is going to be, how they are going to conduct themselves, who the new Ministers are going to be, and many other problems.

If we also face them with a complete carte blanche, saying, "We do not mind how you run your affairs; we do not care what the rules and regulations are, you make them all up yourselves", I should have thought that the first six months of that Assembly are going to be involved in almost continual wrangling as to what the standing orders should be. My noble friend Lord Ferrers, when he moved this Amendment, specifically said he did not want to tie the Scottish Assembly to exactly the same procedures as ours. I agree with this. Surely in its very simple terms this Amendment, saying that there should be a consideration of principle, that there should be a consideration of a Bill in detail and, finally, a third stage whether or not one voted against it, is almost bound .to be accepted by any Assembly that one can imagine unless we suddenly become a Maoist dictatorship which is, on the face of it, unlikely.

Therefore I would have thought that what the noble and learned Lord the Minister feels sometimes about "nanny's apron strings" may well be a considerable help in solving many of the arguments that might take place in the early days of the Assembly. I hope the Government will look at the matter from this angle. It is not meant to be obstructive in the least and it is not an attempt to tie up the Assembly in any way. I want to see the Assembly working well, and I should like to make its path as simple as possible.

5.10 p.m.

Lord SHEPHERD

I find myself in some difficulty. I rather sympathise, first, with my noble and learned friend, in that one does not want to put into this Bill—I use the words which he used—a sort of "apron strings "approach, because I expect these will be people who are not only qualified but who also have a general democratic approach. I have a great deal of sympathy also with what noble Lords opposite have said: that there needs to be some assurance in the Bill that the standing orders would ensure that any proposal which is made should be more widely known throughout Scotland before it is passed by the Assembly. At the moment I am not certain —I did try to get quickly a piece of information about this—but it seems to me at the present moment that it would be possible for the Assembly to publish a Bill on Wednesday night and to pass it on Thursday.

If that is so, I should have thought that we in Parliament ought to have some general provisions put in to ensure that legislation is reasonably well known throughout Scotland and that there are opportunities for discussion. I have no doubt at all that the Assembly and the Executive will do this in fact. But I must say to my noble and learned friend that it is not necessary to be quite so specific here, spelling it out in schoolboy language, but there should be the sort of provision introduced that would ensure that legislation is fairly well known throughout Scotland and that there is a reasonable period, except perhaps in cases of emergency, for a Bill to go through a proper and understandable process.

My feeling is that perhaps the noble Earl's Amendment is a little too school-boyish, with its "apron string" approach, but I would ask my noble and learned friend to consider this again and to say whether or not he would agree with me that it would be quite wrong to let this Bill go through, certainly at this stage, if one knew that a Bill could be published on Thursday in the Assembly and be passed on Friday. In my view, that would be quite wrong.

5.13 p.m.

Lord CAMPBELL of CROY

I am inclined to agree very much with what the noble Lord, Lord Shepherd, has just said. As my noble friend explained in moving this Amendment, which is a probing Amendment, these were the words which the Government themselves had previously espoused. Therefore one naturally wanted to find out why they had been dropped out. The Government have clearly changed their minds and the noble and learned Lord has explained this to us. But the Government seem to have moved from one extreme to another because in the White Paper Our Changing Democracy, which was followed of course by other White Papers, they spelled out in some detail how they expected an Assembly of the kind envisaged in this Bill to operate.

They have now gone to the other extreme, of apparently putting in nothing at all. I think that is going too far, because it could lead to the situation described by the noble Lord, Lord Shepherd. There is certainly an argument for not stipulating that an Assembly should follow the procedures at Westminster. There is also an argument for not stipulating that it should not follow any detailed procedures, thus leaving a good deal of flexibility to the Assembly. But where there are major departures from the White Paper, and even from the last Bill—the Scotland and Wales Bill, as it was called—clearly we must get an explanation from the Government as to why they have changed their minds. The explanation given by the noble and learned Lord was the first one that came to our minds, that they had decided to give a great deal of discretion to the Assembly. But as I say, they have gone from one extreme to the other.

At other times during our debates, Government spokesmen refer us to the White Papers and say: "It is in the Bill because that is what we said we were going to do". So at times we really do need to register the points where they are trying to follow in a Bill, in which, as the noble and learned Law Lords have said, there are some of the most complex clauses they have ever met in their lives. In a Bill of that nature it is important for us to try to discover at what points the Government are attempting to implement passages from their previous White Papers and at what points, as illustrated in the present case, they have departed completely from their previous idea.

The noble Lord, Lord Shepherd, in his previous intervention, spoke of his experience in helping to formulate Constitutions, and I assume that he was referring to his time as a Minister at the Colonial Office. Indeed, I remember him in that appointment and on various occasions went to see him before going to visit colonies abroad. However, I am sure the noble Lord will agree straight away that some of those Constitutions, particularly in Africa, have not notably remained in the form which was intended. Moreover, they have not been handled very responsibly. That is not his fault: not for a moment would I suggest that. It has nothing to do with those who were helping to formulate Constitutions. It was other events, and local events which took place in the African countries concerned, which have led to Government dictatorships or to other forms of misgovernment.

I am not suggesting that the same kind of thing could happen in Scotland, but I think that when we are considering this Bill, whether on the point we are now discussing or on other points, we must realise that we are not constructing a framework within which we can expect reasonable people to be working. Of course we hope that everyone in the new Assembly will be reasonable and will be wanting to make the Assembly work; but we also know there are some people who do not want the Assembly to work, if it is set up. We know that there are some people who will be Members of the Assembly who will not want it to work. Therefore, it is important that, as far as possible, we should aim at clarity and should try to to fix the limits where boundaries have to be drawn as to be visible to all who inquire.

We need look no further than MPs of the Scottish National Party. They may hastily and merrily help to establish an Assembly, if this Bill is passed. They will not mind if there is a happy-go- lucky, flimsy framework in this Bill, because they do not want an Assembly to be stable or lasting. There are bound to be some members of the Scottish National Party, on the present showing, in the new Assembly—indeed, they could at times be the majority group—and I would draw attention to the statements they have made in discussing this Bill in another place. Of course, I am not going to quote, but I will paraphrase and summarise and I will give the Hansard reference, which is column 1806 of I 1 th January. A member of that Party, said that he did not look upon the Assembly as anything but a staging-post on the way to full Scottish control of all the functions of government. So one must recognise that there are likely to be a number of persons in a new Assembly who are not interested in its continuing to work. They may help to set it up, but they will then try to do everything they can to stretch whatever powers have been given to agitate for more powers to make the thing not work.

Every time the Government, and this Committee, are discussing giving discretion to the Assembly and to providing for more flexibility for it—all things which are admirable in themselves—and when we are framing guidelines that may be vague, again to give the Assembly latitude, or when we are considering how the Secretary of State for Scotland and the new Scottish Executives are to relate to each other, we must remember those words. We must remember the statements that have been made by members of the Party who are likely to be represented in this body, and who, once it has been set up and has got going, will be determined to make sure that it does not work properly, because that is not their aim. They do not want it to be a lasting or stable body. So I hope that the Government will bear that in mind.

I recognise that, to repeat the words already used, this is a probing Amendment to see why the Government have changed their minds. But I, for my part, agree with what the noble Lord, Lord Shepherd, has said, that something is needed to make sure that an irresponsible group who do not want the Assembly to work, and who simply want to throw sand into the machinery, cannot use the complete absence of any kind of provision in this Bill as a way to wreck the working of the Assembly.

The Earl of SELKIRK

May I say one word in support of the noble Lord, Lord Shepherd. I know of one country which produces a Finance Bill before lunch, and it is law before dark.

5.22 p.m.

The Earl of PERTH

While I do not want to be a spokesman for the Scottish National Party, I am sure that the noble Lord, Lord Campbell of Croy, would not want to mislead this Committee. It is my belief—and I may be wrong about this—that while certain members of the Scottish National Party may have made various extreme statements, there is on the record a resolution of the last Party conference of the Scottish National Party that, anyhow at this stage, they are anxious to make this Assembly work.

Lord CAMPBELL of CROY

I am most grateful to the noble Earl for mentioning those important words "at this stage". But at a Party conference three or four years ago, when this matter arose, the Party spokesmen said that they did not want devolution, they were against devolution and they stood for independence and nothing else. That is what was then adopted.

The Earl of PERTH

I repeat that I do not want to get into the position of arguing in favour of the Scottish National Party, but I think that the latest Party conference showed that, at the present time, they want to act responsibly. But that does not mean to say—and I am sure that the words were not "at this stage"—that if, later on, they had a majority they would not want to change. I believe that we should bear that in mind.

After listening to the debate, it seems to me that there is force in having some indication of the way in which a Bill should be treated. I think that the Amendment is a little mandatory as it stands, and perhaps the movers of it will recognise that, in the sense that it is a probing Amendment. But I hope that the noble and learned Lord will consider that there should be something inserted, if only to the effect that in making their standing orders they should consider (a), (b) and (c) as listed here, or something to that effect, because I feel, with others, that giving them the benefit of our experience may be useful. My only other point is that I know that what I am saying does not meet the point raised by the noble Lord, Lord Shepherd, or the noble Earl, Lord Selkirk, that if this were followed it could all be done in a day. That shows the difficulty that one is up against when trying to lay down specifically what should be the standing orders.

5.24 p.m.

The Earl of LAUDERDALE

Perhaps it is worth while to remind the noble Earl, Lord Perth, that the last Election Manifesto of the Scottish National Party included the purpose "to achieve separation from the United Kingdom". It is all very fine saying that a more responsible mood has supervened in the meantime. One knows of various Parties that adjust their presentations to the whims of the political climate. I do not wish to be nasty about the Opposition, because at present I want to try to be nice to them. But there are Parties which dress themselves up according to the situation, and I think that the SNP is one. My noble friend Lord Campbell has done us a service by drawing attention to what has been said in the Commons by separatist MPs. They are separatists and call themselves separatists, so why waste time calling them the SNP? They have said things which amount to a determination to use the Scottish Convention as a basis for wrecking the unity of this country.

Of course, we all hope—and the noble Lord, Lord Shepherd, knows that we all hope—that the balance in the Convention, if it eventually meets, will be a responsible one. But we all know very well that, at the present moment, the three main Parties are level-pegging in Scotland, so that it is anybody's guess who will have a majority. Nobody knows. It may be a see-saw and it may be that the balance being led by responsible people in all Parties will do no disservice to the Union. But it could go the other way, and we are being untrue to our duty to our country and, it may be, not very faithful to our host, the Sovereign, if we do not lend our very best endeavours to scrutinising this matter and this danger with the very greatest care.

I am sure that my noble friend Lord Glenkinglas was right when he foresaw the period of the first six months of the new Convention being simply a wrangle on procedure and, if they are given carte blanche and given nothing to go by, that is exactly what will happen. This is not a constituent Assembly, as was pointed out the other night. This is an Assembly set up by Parliament, and to give it the powers of a constituent Assembly is to muddle its functions. As has been pointed out by the noble Lord, Lord Shepherd, and others the real danger is that there might be a Party in charge, or a group in charge, in that Convention which will decide to publish a Bill one day and pass it through the next. That could happen, and if we pretend that it could not we are mad. The very fact that it could happen should put us on our guard.

It is therefore interesting that the Government have gone back on the thoughts expressed in their own White Paper about the kind of procedures that might be adopted. The best thing we have heard this afternoon—and, as always, I want to say this as nicely as possible—is that the Government can have second thoughts. So far, during the first five nights on this Bill, the Government have said that they could not have second thoughts. Anyhow, we are now told by the noble and learned Lord, Lord McCluskey, that they have had second thoughts on this matter. If they can have second thoughts, they are on the way to a conversion. Perhaps they will have third thoughts. I implore them to take seriously the danger which lies before us and which it is irresponsible to ignore.

5.27 p.m.

The Earl of MANSFIELD

Before the noble and learned Lord replies, I wonder whether I may ask him a question, perhaps in the form of throwing out a lifebelt to him; and if the Committee will take a third speech from the Front Bench I shall be obliged. I should like to refer the noble and learned Lord back to Clause 7(1) which states: …the Secretary of State may give directions for regulating its procedure pending the making of standing orders". I wonder what is contemplated in that subsection. Is it within the contemplation of the Secretary of State, or of the learned and noble Lord's colleagues, at the moment that something is to he published by way of a procedure which it will then be for the Assembly to observe, until it has made up its mind what it wants to do? Otherwise, my noble friend Lord Glenkinglas has a very strong point.

I am afraid that I do not take what I might call the extreme view of the noble Lord, Lord Mackie, that once this Bill is on the Statute Book all will be sweetness and light in Scotland. We Scots are a fractious and contentious race. In my own region, the identity of the regional convener had eventually to be decided by not one but two throws of the cards, which shows how unwilling and, sometimes unable we are to compromise. Equally, I do not necessarily see that the Nationalists or any other body, will behave so badly that the entire Assembly will be wrecked before it can do anything, because they arc determined that it shall have no sensible standing orders.

In the same way as nature abhors a vacuum, something will have to be done, otherwise how is the new body to set about making its procedures? Every colonial Legislature is given something upon which to hang its hat. Surely it is right and proper that this Assembly should also be given something by way of bare bones. I reject the apron string argument. If it is to be a body which can control its own destiny, as it obviously is, and if it does not like what it is given to start with, it can always change it; but if it is not given something it may be in real difficulty.

When I looked at my noble friend's Amendment I was not very taken with it, because I am not sure that I am very taken with Westminster procedure. After my two years or so in the European Parliament it seems to me that there are a number of things that we could do to improve our procedures, which would certainly make for better, quicker and shorter debates and at the same time allow a legislative body such as the Assembly to get expertise on its side at a far earlier stage than we do at Westminster. That is something which I should have thought would commend itself—and I hope that it will—to the Assembly if it takes place in due course.

I believe that this is something about which the Government ought to think again. If the Bill goes through, at the moment there is nothing, saving Clause 7, for the Assembly to do in the first few days and months of its existence except to try to work out how it is going to regulate its procedures. Without a wise man, or a series of wise men to help it, I must say that I foresee difficulties in the future.

5.33 p.m.

Lord McCLUSKEY

There are two separate points for ine to deal with: first, whether or not the Bill should contain either a mandatory provision of this kind, or guidance, and, secondly, whether there should he restrictions of a kind not envisaged either by the Amendment itself or by the Bill, to stop a Bill passing in 24 hours without due consideration by the public.

To turn to the first point, I had it in mind to refer to Clause 7(1). The noble Earl, I having shot one of his foxes last week, decided to shoot mine. I was indeed going to refer to Clause 7(1), because what is contemplated is that the Secretary of State will produce standing orders for the Assembly so that it comes to birth with the possibility at once of functioning in an orderly fashion. If what is wanted is guidance as to procedures, then such guidance will be contained in such directions as are permitted under Clause 7(1). In relation to whether we should have second thoughts, we have had second thoughts and the question is whether we should have third thoughts. The Government consider that if the guidance which is desired and which is desiderated is given by directions of the kind which I have just been describing, that is quite sufficient.

In relation to the other matter, there is nothing in the Bill or, indeed, in the proposed new clause, to prevent the Assembly from introducing and completing a Bill within a period of 24 hours, any more than there is anything to prevent that happening in this Parliament. If one considers that the Assembly may have to face emergencies, one must allow it that possibility. I do not think that I can give noble Lords examples of many situations in which the Assembly might be faced with an emergency, but under Group 7 and Group 8 in Schedule 10 it has legislative control over pollution and erosion and flooding.

These are matters of a kind which might require emergency legislation in particular circumstances. If the Assembly had to legislate for an emergency, it might need to do so in a very short space of time. Once we concede that possibility, we run into the next difficulty, or I think that the noble Lord, Lord Shepherd, would run into this difficulty: how in this Bill do we define an emergency? In other words, what kind of provision do we write into the Scotland Bill which says: "For an emergency you can go through your procedures in 24 hours, otherwise it has to take three weeks, three months", or whatever period my noble friend has in mind. I believe that the difficulty then derives from defining an emergency.

Again I have to come back to the Government's judgment. After publishing the White Paper and the Scotland and Wales Bill, and after having reconsidered the matter in the light of what was said, the Government's judgment—I do not pretend that it is a black and white matter now is that the Bill as it stands is sufficient and that the Assembly should determine its own procedure.

5.36 p.m.

Lord HARMAR-NICHOLLS

I wonder whether noble Lords ought to accept that answer. It may help the noble and learned Lord, Lord McCluskey, if we give him rather more than the benefit of advice and debate and push this Amendment to a Division. I know that the general idea —and it is sound—is that noble Lords should use the Committee stage of the Bill for probing and finding out roughly what is in the Government's mind and that a considered decision should be reached later as to whether or not we should use the power of our vote to be more effective than our arguments have been. The idea is sound and generally I accept it. However, in the light of the reply which the noble and learned Lord had to give—it was not a personal point; it is quite clear that the Government have made a decision that we do not think is the right one—I wonder whether, by leaving it just at our words in debate, we shall be doing sufficient on this occasion. I believe that the arguments which have been adduced within the last hour have been so well based and so sound that we have a duty to put extra emphasis on the point that we want to make.

We ought to face up to the fact that we have to legislate on the basis that the people who will be in charge of the Assembly will not be reasonable people. I agree absolutely with the noble and learned Lord that if the Assembly contains reasonable people who, objectively and impartially, genuinely want to make things work, we can adopt one approach; but we are hiding our heads in the sand if we do not recognise that the people who are likely to have a great deal of power in that Assembly do not intend to make it work easily because it would injure their long term desires. I am paraphrasing again, but mention has been made of what various members of the Scottish National Party have said. One of the members of that Party said that the SNP want this Bill to be so bad that it will fail in order that from its failures they can then produce as an alternative the rather extreme things that they want. I do not believe that we are doing our duty if we ignore that possibility, in the light of all that has happened.

The reason why I attach specific importance to this Amendment—not that I am tied to its words—is that if the framework under which the Assembly is to operate is not capable of providing certain safeguards, then it is our fault. I believe that the first thoughts of the Government about wanting something like this were right. The noble and learned Lord said that the arguments that were produced when the White Paper was published caused them to change their minds. I have no vivid recollection of any arguments that were so strong as that. I can understand that there may be arguments which one could use in order to persuade the Government to alter words and make it a little more acceptable by using different phrases.

The general idea of setting up a framework is a real one. The point made to the noble Lord, Lord Shepherd, is also very real. We have had experience of trying to build in extra safeguards when we have been giving power to various colonies which have gained their independence. Those safeguards have not lasted for very long because the overriding desire of the people in charge was to ignore the framework that was provided. It made it that much more difficult for them when the framework was there.

I am addressing myself now more to my noble friends on the Front Bench than to anybody else My noble friends have won this argument; there is no doubt about that. Because of the importance of that argument, may not this be one occasion during the Committee stage when we ought to say to the Government—I am not referring to the noble and learned Lord, Lord McCluskey, who is doing a great job with flair and charm, but he is working on instructions; that is what Ministers have to do rather more in this place than in the other—that on this important matter of setting up a framework we feel rather more deeply than merely to use words in debate and, if the noble and learned Lord's reply is not acceptable, ought we not to think about pushing the matter to a vote so that at the Report stage the Government then have the responsibility of providing an alternative in words that might be found to be acceptable?

5.40 p.m.

Lord SHEPHERD

I hope that the Opposition Front Bench will resist the blandishments and suggestions of the noble Lord, Lord Harmar-Nicholls. We are discussing a complex matter and this is not the occasion for a Division upon a very narrow point. I said that I had a great deal of sympathy with noble Lords opposite. I have to say quite frankly to the noble Lord, Lord Campbell of Croy, that some of my sympathy slightly evaporated, to say the least, when he referred to the Scottish Nationalists and what their attitude may be in the Assembly. The noble Lord, Lord Campbell of Croy, must know that if that is the determination of the Scottish Nationalists there is nothing in this Bill in terms of standing orders which will prevent it.

I should like my noble and learned friend to look again at the point I raised about the passage of legislation within 24 hours. He said, quite rightly, that in an emergency Parliament can pass legislation through two Houses in a short period of time. But it has got to put aside its Standing Orders in order to do it, and this is some control over the way in which legislation is passed. I wish to make a special plea in regard to this and now I am not even saying whether it is 24 hours, 48 hours or 72 hours, but my noble and learned friend Lord McCluskey has greater knowledge than mine. However, mine is sufficient to know that communication in Scotland is difficult. True there is radio and television, but the circulation of newspapers is a little slower. Therefore, I ask my noble and learned friend whether he will undertake to look at what has been said, without any commitment whatsoever. I hope then that noble Lords on the Front Bench opposite would not take too much notice of the suggestion made by the noble Lord, Lord Harmar-Nicholls.

The Earl of LAUDERDALE

I should like to follow what the noble Lord, Lord Shepherd, has just said because he is absolutely right in saying that no piece of paper, no Constitution, no Parliamentary Acts can or will deter the Scottish people from separatism if they should be bent upon it. I hope that is common ground to us all and we need not accuse each other of putting our heads in the sand on that issue.

However, there is one point to which the noble Lord, Lord Shepherd, drew attention, which I think is perhaps more relevant than is generally considered; that is, his point about radio and television. Let us say that the Bill eventually has certain procedures written into it which have the general effect of delaying a sudden action by the Scottish Assembly, save in the case of emergency. If the effect of that is to delay and if an emergency arises, the Assembly will have no difficulty in carrying public opinion with it, but if there are no checks in the sense of procedural delays then they can do something and the media cannot do anything afterwards to stop it. At the end of the day, we in this House can do very little about the other place. What we know and have seen is that by securing a debate on a particular matter we can get the media interested, the public interested, and that in turn exerts pressure.

Surely what we are interested in here is not paper checks in themselves, because they are worthless; we want to provide such means in the procedures of the Convention that, should the Scottish Convention prove to be governed by what is in effect a dictatorship, there will be something for the media to hold on to when the Scottish Convention are trying to ride roughshod over them. They will be able to appeal to the Scottish people who, in the end, will decide. It is in order to enable that to happen that we are expressing our concern.

Lord MOTTISTONE

Perhaps I may bring one point to the notice of the noble and learned Lord. I think he called in aid Clause 7(1) as grounds for not needing to take the sort of action which my noble friend has proposed and which he is being pressed to consider. It seems to me that that subsection says first, "The Secretary of State may", rather than, "The Secretary of State will"; therefore one cannot be sure that what is required will happen.

Lord McCLUSKEY

It is the intention of the present Government that directions resembling Standing Orders will be available when the Assembly comes into being.

Lord MACKIE of BENSHIE

It has been implied by the noble Earl, Lord Mansfield, that I am postulating an Assembly which will be a sloppy "love-in" in which goodness and light will overcome all troubles. I must deny this suggestion, because already your Lordships have written in one enormous safeguard to this Bill; namely, the provision for proportional representation which will without doubt contain the evil man against whom we are trying to legislate. At this stage I think that is the most important thing that this House has done. I see all sorts of checks and balances in the provision of powers by the Secretary of State which can override the actions which are envisaged repeatedly by the noble Lord, Lord Harmar-Nicholls. Therefore I think we can rest content on the fact that we have taken the exact23 measures in this House to make the Bill work; that is, to provide a system of proportional representation, so that it will reflect the wishes of the Scottish people. What has been said correctly by the noble Earl, Lord Lauderdale, is that, if the Scottish people want to separate from us, nothing can stop them. Therefore I think your Lordships should rest content and ensure that the PR provision stays in the Bill when the time comes.

Lord LEATHERLAND

This has been a wide-ranging debate, from separation to proportional representation, neither of which matters appears to fall within the scope of the clause we are discussing. Having said that, I must say it has also been an important debate. It has been useful. One of the most useful points was made by my noble friend Lord Shepherd, when he said that there ought to be some provision in the Bill which would prevent the Scottish Assembly from rushing a Bill through all its stages in 24 hours. That is a vital consideration.

So let us turn to the Amendment. Viewed from that point of view, the Amendment is completely useless. It says, under three headings, that first there shall be a general debate on the Bill. Then it says that there shall be a debate and vote on the details of the Bill. Then it says that there shall be the final stages of the Bill. But it does not say that there shall be an interval of any kind between those three stages. Therefore those three stages could be taken in half an hour. There could be the Second Reading, immediately followed by the Committee stage and immediately followed by the final stages. Therefore, if by this Amendment there is an attempt to bring order and proper consideration into the legislation that comes before the Assembly, this is a completely useless Amendment and I suggest that those people who have backed the Amendment should withdraw it, go away and come back another day with an Amendment which goes into more precise details.

5.49 p.m.

Lord GLENKINGLAS

If the noble Lord, Lord Leatherland, had attended Scottish debates as often as I have he would realise that the concept of getting the Second Reading, let alone the Committee stage and Third Reading through in half an hour really makes one's mind boggle. We may have many great attributes in Scotland but shortage of wind in that sense is not one of them.

I was pleased to hear from the noble and learned Lord in an intervention that the Government had in fact decided that the Secretary of State would produce some draft procedure before the Assembly met. Would it be too much to ask that, if that is the intention, then, at some stage before the Bill is passed, we should have some idea what form his draft procedure would take? I think this would be not only useful to your Lordships but also it is very important that this type of document should be given some publicity before an Assembly is actually elected. It is very likely that a vast proportion of the Assembly, if not all, will not have been in any legislative Assembly in their lives, and therefore they will need to have some guidance as to how they are to behave when they get there. This is not to encourage longer debate but perhaps to get the noble and learned Lord to come a little bit further, before we get to later stages of the Bill, towards seeing how this draft procedure is to be announced.

Lord DRUMALBYN

May I make two remarks. The first is that, as I understand it, the purpose of this Amendment is really to bring the Assembly within the Parliamentary traditions of this country. That is the first thing, and that seems to me a commendable thing to do. We in our Parliamentary tradition sometimes have to act in an emergency, and it may well be that we have to compress the procedure. That brings me to the second point I want to make, that it is very difficult to conceive of an emergency which would affect devolved matters only, and therefore the probability is that legislation for an emergency would be United Kingdom legislation. Therefore, I rather doubt whether traditions requiring any special time for passage of a Bill should necessarily be written into the standing orders. It seems to me that my noble friend's Amendment brings the whole ambit of the Assembly into the Parliamentary tradition of this country, and to that extent I would think the Government would welcome it.

Lord BALERNO

While this debate has been going on I have been turning over in my mind the point that the noble Lord, Lord Mackie of Benshie, raised; that is, that proportional representation would be the sure safeguard. I entirely agree with him on that point. But where I have misgivings is as to the likelihood of proportional representation being in the Act as it is finally passed. The odds are that it is not going to be left in the Bill by another place. Therefore, we really have to have some kind of safeguard. If my noble friends on the Front Bench press their Amendment, I should like to feel that there was a safeguard, that standing orders could be suspended by a vote of two-thirds or so of the Assembly. I think that would meet the point of the emergency, which could be a very real one. I do not like to disagree with my noble friend Lord Drumalbyn, but I can conceive of emergencies arising which are of no interest to the English whatever, and it would be a great pity for the Assembly not to be able to act.

Earl FERRERS

I think no one who has listened to this debate could have failed to be impressed by the concern and the apprehension which have emanated from all parts of the House as to the present state of the Bill in relation to this particular provision. I think it was the noble Lord, Lord Shepherd, who said that we have to realise that we shall be dealing with qualified and democratic people. We may well be; it is our hope that we will be, but there is nothing to say that we will be. My noble friend Lord Lauderdale said that, after all, people are responsible. We hope that they will be, but our great problem is what happens if they are not. I would think that, far from being nursemaids, Parliament has the right to try to guide the new Assembly. It has the right, and indeed I would think the obligation, to try to guide in some respects the way in which it is going to carry out its affairs.

After all, we are giving very substantial powers. The Acts which the Assembly passes are going to be equivalent to Acts of Parliament; these are huge powers. Yet we are saying, "The way you deal with these Acts, the way you process your business is to be entirely for you, and we, Parliament, are not going to have anything to do with it." I would have thought that that leaves a huge gaping hole. What happens if you get one Party in supremacy? It is perfectly possible. It may be undesirable, but it could well happen. That one Party. if it had a majority of votes, would in fact have total control over the standing orders. It could arrange the standing orders the way that it wanted; then they would vote on the standing orders, and because that Party had a majority those standing orders would become the accepted standing orders of the Assembly.

The noble Lord, Lord Shepherd, asked quite rightly what would happen if it was possible to publish a Bill on Thursday and pass it on Friday? Clearly that is not meant to be done. I think it was the noble Earl, Lord Perth, who said that is all right, we set aside standing orders when that is done in Parliament. But the point is that you have got the standing orders to set aside. Here you have not got the standing orders. What happens if the standing orders on which the Assembly decides should indicate that Bills should not have the equivalent of Committee stage or Report stage; they could be presented, debated, and either accepted or rejected, not amended? There is nothing to say that that could not be in the standing orders, if you had a Party with a majority which wanted to use its power and its influence.

My noble friend Lord Campbell of Croy quite rightly directed your Lordships' attention to the influence and power of the Scottish National Party. What happens if that Party gets a majority and is able to control and design the standing orders and then to vote on them, when they have acknowledged themselves as wishing to see the break-up of the unity of the United Kingdom? Is anyone going to say that we should believe that they would construct the standing orders to enable that not to happen? I am bound to say I was alarmed when the noble Lord. Lord Mackie of Benshie, and I think Lord Shepherd, said "After all, if the Scottish Nationalists do get in and if they really do want to break up the United Kingdom, there is nothing you can do about it". That is what the whole Bill is about, and that is the great fear that many of us have.

Lord SHEPHERD

What I said was that the standing orders would not prevent it. I said that if the Scottish Nationalists wished not to work the Assembly correctly, or if they were, as Lord Campbell of Croy said, inevitably going towards independence, it is not the standing orders in themselves that would prevent it.

Earl FERRERS

That may be so, but if you have no standing orders at all it will certainly assist them to do it. This is the very point that is of much concern to many of us; the fact that if you do set up an Assembly like this that is a possibility, and the fact that it is a possibility was not denied by anyone.

Lord MACKIE of BENSHIE

If you do not set up the Assembly, it will be a probability.

Earl FERRERS

I certainly accept that there is a problem: all of us accept that there is a problem. The only question is how best to contain it. The noble and learned Lord, Lord McCluskey, said that the Government have looked at this again and believe they have got the right answer. I feel a certain amount of sympathy for him because one is on a hiding to nothing if the Government insist in the first instance that they are right and then everyone says they have been totally inflexible, whereas if they change their mind everyone says they are being inconsistent. Our great problem is to encourage the Government to change their mind when we think they ought to change it and not to change it on those things we think should remain unchanged.

I hope that the noble and learned Lord will consider this again. I think he said, in referring to Clause 7(1), that my noble friend Lord Mansfield had "shot his fox" and that he felt a tinge of sorrow about that. I think he might have shot his fox, but the noble and learned Lord unleashed a whole host of cubs out of the same earth. Clause 7(1) reads: The procedure of the Assembly shall be regulated by standing orders of the Assembly; but the Secretary of State may give directions for regulating its procedure pending the making of standing orders". The noble and learned Lord shakes his head.

Lord McCLUSKEY

I am shaking my head because we have been through all this before.

Earl FERRERS

I do not think we have, because in fact the Secretary of State can make regulations indicating the way the Assembly shall conduct itself and therefore the Secretary of State presumably has in mind those indications as to the way he expects the Assembly to run itself. The way that those first procedures are drawn up is going to depend very much on the way in which the standing orders will he implemented later on. It would be interesting if the noble and learned Lord would be good enough to say what ideas the Secretary of State has in mind. After all, if he is going to produce these when the Assembly is set up, he must be fairly concerned at the moment to know what those regulations should be. It would he interesting if the noble and learned Lord could tell us whether they expect that these regulations which the Secretary of State is to make are to be of the Westminster type, with Second Reading and Committee and Report stages. Will there be that type of thing?

Lord McCLUSKEY

I should like to make this clear. The Government's thinking as to what the standing orders of the Assembly should sensibly be has not changed either since the White Paper or since the Scotland and Wales Bill. All that has changed is that we do not see the need to write in a mandatory provision saying "you shall do this" but plainly, the Government's thinking about the form of standing orders or the initial directions is no different from what has been disclosed in the White Paper.

Earl FERRERS

That is one step further forward and I am grateful to the noble and learned Lord for that. Obviously, I do not claim that this Amendment is perfect or necessarily the best Amendment. Some noble Lords have suggested that this is something which we should write into the Bill. I think something ought to be written into the Bill and I just asked the noble and learned Lord as he has heard the arguments which have been put forwa..d, whether he will he kind enough to think about this before the next stage of the Bill. It is something about which considerable concern has been expressed and think I would be sensing the views of the Committee aright if I were to say that on the whole your Lordships consider it would he wrong to let this Bill go through without any provision whatsoever relating to the way the Assembly should conduct its business. Even if the Amendment which I have proposed is not the correct one, will the noble Lord—and I am sure he has a magnanimous attitude because the Government have changed their mind once before—consider it again before the next stage?—because it is clear that something should be put into this Bill. The main objection is to try to get the best thing.

The Earl of LAUDERDALE

Will the noble and learned Lord also give us some assurance that before we go much further with the Bill we can be told what directions the Secretary of State has in mind under Clause 7?

Lord McCLUSKEY

I have said all that is necessary on that matter and I do not want to take up the time of the Committee. The Government's thinking is perfectly plain in the White Paper and in the Scotland and Wales Bill. At the time of the Scotland and Wales Bill we were constantly, and rightly, called upon to simplify and shorten the Bill and to take out unnecessary material. We have done that and now we are being criticised for taking it out.

The Earl of LAUDERDALE

When he says it is unnecessary to answer something, the noble and learned Lord is falling back into a form which we had hoped he was getting out of.

Lord McCLUSKEY

I did not say that it was unnecessary to answer anything at all. I said it was unnecessary to include in the Bill unnecessary provisions.

The Earl of LAUDERDALE

I thought the noble and learned Lord said that it was unnecessary to go over again what had been said before. He has been asked by my noble friend Lord Glenkinglas and myself whether he will give some indication, during the passage of the Bill, of the directions which the Secretary of State means to give. He has said that the Government's thinking has nor changed from that given in the White Paper.

The White Paper does not tell us what directions the Secretary of State is going to give. Presumably, he already has his directions in draft. Do not let us imagine that the Government are so muddled that they do not know what directions they are going to give. They must know. He has been asked if, sooner or later. he will disclose the line of these directions, and that is all we are asking. Surely it is not unreasonable to ask that. I hope that the noble and learned Lord will not fall back on this device of saying that it is unnecessary to ask this or that. if he does that, he will get more and more resistence, as I am sure he realises.

Lord MACKIE of BENSHIE

Does not the noble Lord realise that the noble and learned Lord, Lord McCluskey. has been subjected to a considerable amount of repetition? He has said at least three times that the Government's thinking has not changed since the White Paper. I should have thought that that was enough. We are going to spend nights and nights on this Bill unless we get on and do not repeat every question five times.

Earl FERRERS

I had hoped that the noble and learned Lord would have indicated that he would consider the expression of concern that was made this evening. I still hope that he will, because I cannot help thinking that, had we had the Scotland and Wales Bill and had a Member of your Lordships' House put down an Amendment to delete that which we are seeking to put in, the noble and learned Lord would have said that, for this, that and the other reason, it was absolutely essential to have this in—very persuasive it would have been. The noble and learned Lord would have said that the Government had made up their mind that it was absolutely correct that this should he in. We congratulate the Government on changing their mind but we think they have gone a little hit too far, and, if the noble and learned Lord will be good enough to consider this before the next stage, I for one shall be grateful. I can give him an assurance we certainly will try and consider it before the next stage. I beg leave to withdraw the Amendment.

Lord HARMAR-NICHOLLS

I think this has ceased to be only my noble friend's Amendment and has become the Amendment of the House. The House has spent a lot of time on it and has produced arguments to justify the Amendment or something very much like it. I would hope that, before permission is given for it to be withdrawn, we might consider that here is a fundamental question which on the surface can look tizzy; underneath, however, unless the framework specifying how the Assembly can proceed is the right framework, then all sorts of wrong things can happen. I am very new to your Lordships' House, but I do not think that good arguments ought to be wasted. If the noble and learned Lord could give any indication at all that he was likely to look at the argument which is being pursued, I should have said, "Yes, carry on with the procedure that we have adopted. If we are going to have any voting, we shall do it at the Report stage". But he has not given that indication. It is not his fault. He has clear instructions as to how far he can go on this important matter. He has not gone far enough. Whatever they may do later in another place or at Report stage, I believe that, on the strength of the argument which has been adduced, we ought to put this to the vote and I hope that your Lordships will win it. For that reason, I would suggest that we do not accept withdrawal of the Amendment.

Earl FERRERS

Before the question is put, I would say to my noble friend that I realise he feels strongly about this but that there have been certain suggestions from various pars of the House that the Amendment, as it is constructed, is not as good as it could be. My intention was to withdraw the Amendment in order to try to see if we could meet the objection which the noble and learned Lord had made, in order to put down a better Amendment at Report Stage.

I indicated to my noble friend, and indeed to your Lordships, that we would not let the matter lie. Of course, it is entirely up to the Committee whether it permits the Amendment to be withdrawn. If the Amendment is withdrawn, it would be our determination, and that of the Government, I hope, to ensure that a better form of words was found at the next stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 25 [Members' pecuniary interests.]:

6.10 p.m.

The Earl of SELKIRK moved Amendment No. 228: Page 12, line 13, after ("with") insert ("direct or indirect"). The noble Earl said: This clause deals with the declaration of pecuniary interest. I must say that, having gone so far as putting in this clause, it just does not go far enough. The clause says: The standing orders of the Assembly shall include provision for securing that members with pecuniary interests, as defined by the standing orders, in any matter disclose them …". As that stands, it means one thing and one thing only. It means a direct pecuniary interest. A direct pecuniary interest is not enough for someone holding the privileged position of authority which anyone holds in Parliament. It is quite clear that the advantage from an indirect pecuniary interest—such as planning permission up to the edge of somebody's property, or the 101 occasions of this sort—is simply not good enough.

One of the problems in public life is that standards do not often rise. The tendency is almost always for them to decline. I vividly remember in one country in South-East Asia a senior Cabinet Minister saying to me, "How do you get rid of corruption?" That is a difficult question to answer. Frankly, whatever I may have said, I certainly did not give him a clear cut answer. There is only one way, and that is to stop it starting. There is no other way of doing it.

This Bill, having gone as far as it does, is making the mistake of stopping at the really important part, where it should continue. Therefore I am pressing very strongly that this phrase should be included, unless the matter is stopped at this stage. This is no insult to the people who may be taking part. Every Assembly does not like to set standards, because they say that their Members are honest and would not think for a moment of doing wrong. Experience has shown that the real danger comes when certain practices become accepted, when they become the normal practice of proceeding to do things. Then the standards are picked up by the new people as they come on, and low standards are difficult to eradicate. Set the standard high now and the whole thing may take a different line.

It is no good talking at this stage about apron strings. It is rather like taking a child into the middle of Hyde Park and letting the strings go. That is roughly what this clause is doing. The Government are taking it so far and stopping it. I must commend very strongly that the words "direct and indirect pecuniary interest" should be included. If that is not done, we shall miss the opportunity of setting standards that will certainly be in the interests of the Assembly for all time. I beg to move.

6.14 p.m.

The Duke of ATHOLL

I should very much like to support my noble friend on this point. I think it is a great pity that the word "pecuniary" is in at all. I feel that the Assemblymen—if that is the right term for them—should declare any interests that they may have when they are speaking on a relevant subject in the Assembly. I remember well that when we discussed the section of the Land Commission legislation which affected charities, everyone in this House was most careful to declare, when they spoke, with which charities they were connected and in what way. I am personally convinced that that was right.

So far as I can see at the moment, as this clause stands, unless we have, as my noble friend said, a direct pecuniary interest, we need not declare any interest at all. If one were a trustee of a minor through whose land the Edinburgh by-pass was to go, one would not have to say so when one spoke vehemently either in favour or against the project. In just the same way, if one were the chairman of a large charity one would not have to say which charity one was connected with, which was affected by legislation going through the Assembly. I think that that is a great pity. I hope that the Government will put in some words to make it perfectly clear that any interest, and not only pecuniary interest, should be declared when the matter is being discussed in the Assembly.

The Earl of PERTH

I should also like to support the Amendment. It seems to me, the Government having drawn attention to this matter, that we must go through with it altogether and not just stop at the words "pecuniary interest". If the Government had not mentioned it at all in the Bill then perhaps we could have left it. However, once it is mentioned in the Bill, then, if we do not take account of the Amendment raised by the noble Earl, Lord Selkirk, there comes a time when this may be debated and the standing orders would include the provision. They will say: "We do not have to put in 'indirect' as it was debated in the House of Lords and not accepted." I think that we are in a position when the Amendment put down should be in the Bill, perhaps in some slightly different form. However, the general principle of it is right.

Baroness ELLIOT of HARWOOD

I support the Amendment. I am sure, as the noble Earl, Lord Selkirk, said, that we must lay down the criteria at the beginning, and make perfectly clear what is involved and whether one's interest is direct or indirect. It does not seem to me that it can be divided. If you have an interest in which you are personally involved, whether that is a direct or an indirect interest, you must say so. It has now been accepted, certainly in the House of Commons, and I think it has been accepted here, that we do not make speeches if we are involved in something. without disclosing what our involvement is. It need not be pecuniary. It may just be that one is interested in a particular matter. It will be excellent to include this straight away in the Bill so that any form of embarrassment to people is done away with, because there it is, clearly in black and white, how people are involved. I am sure that this would be a sensible and a good thing to do. People will understand and support it.

6.18 p.m.

Lord TANLAW

I support the spirit of the noble Earl's Amendment. This is very difficult to implement in a Bill of this kind. Where shall we stop with an indirect pecuniary interest? A share in a unit trust may cover a whole range of interests, possibly even unknown to the shareholder. If someone really wants to cheat he is not going to declare his direct or indirect interest. He will never do so, anyway, until he is found out.

As much as I should like to support the noble Earl in the spirit of what he is trying to achieve in this Amendment, I feel that to put the word "indirect" in the Bill will almost create an infringement of the liberties of the individual, as all the time one will want to know whether one has left anything out. That is covered by the very vague and general terms "indirect" and "pecuniary". I hope that the noble Earl will consider this. I cannot give him any advice on how to improve standards in public life. This is a matter that has defeated every Government in every country. Much as I should like to hope so, I do not think that the inclusion of the words "direct or indirect "will be an improvement. And so I am afraid that I cannot go along with his amendment.

The Earl of SELKIRK

When I say "infringement of human liberty "I mean that one can speak as long as one declares one's interest, which is the normal practice of this House. I do not think that that inhibits anybody in your Lordships' House from speaking.

Lord WILSON of LANGS1DE

The noble Lord is quite right in saying that if you have a determined cheat you may not stop him by Act of Parliament. Surely we should be concerned to make things as difficult as possible for him. I think that there is everything to he said in favour of the noble Earl's Amendment and nothing to be said against it. I hope that the Government will accept it, or something very like it, and perhaps add, as has been suggested, something even more stringent. There is no doubt at all that laxity in a similar provision in the application and enforcement of the Local Government (Scotland) legislation is at the root of a certain amount of such corruption as we have in public life in Scotland. I hope that the House will support the spirit and the letter of the Amendment.

Lord DRUMALBYN

I should like to make one comment. I entirely agree with what my noble friend has said and with his motives in moving the Amendment. However, if we were to put "direct or indirect" interests into the Bill, would we not have to define what is meant by that? As it stands, it would read: direct or indirect pecuniary interests, as defined by the standing orders". So we would then be leaving the Assembly itself to define what was a direct interest and what was an indirect interest. I think that we must go the whole hog, one way or the other. We should either leave it to the Assembly to define in their standing orders what is meant by "pecuniary interests", or we should do it ourselves. I think that on this occasion my noble friend has not gone far enough. He would have to define what was meant by "direct or indirect pecuniary interests "if he wanted this to stick, and leave out the words: as defined by the standing orders".

Lord MACKIE of BENSHIE

I should like to support the noble Earl, Lord Selkirk, in his effort to start with the highest possible standards. However, I also want to support my noble friend in pointing out the extreme difficulties, because if we use a simple phrase like "direct or indirect "people might quite unwittingly forget or not know about a unit trust, as my noble friend said, as a share holding. Then we go on to pick out the penalties which at present include a fine not exceeding £500; and there is an Amendment down to insert: or to a sentence of imprisonment not exceeding six months or both". Therefore, this needs to be defined. Although we certainly support the spirit of starting with the highest possible standards, I think that the phrase itself contains dangers. I think that the noble Earl should think about it.

6.22 p.m.

Baroness STEDMAN

As the noble Earl said when moving the Amendment, it would ensure that the Assembly would provide in its standing orders that Members with direct or indirect pecuniary interests in the matter under consideration should disclose them. However, as the noble Lord, Lord Drumalbyn, and the two noble Lords on the Liberal Benches have said, it is not clear how wide a definition of "pecuniary interests" is intended. Would a Member, for example, be expected to disclose that his spouse was a teacher, if teachers' salaries were being discussed? We can go very wide on this matter or very narrow. We think that the Bill contains the essential provision that the pecuniary interests are to be disclosed and it provides a penalty for non-compliance. The Bill does not specify the scope of the pecuniary interest to be disclosed—that, and other details relating to how the disclosure should be recorded, are left to the Assembly itself to determine.

The additional words that are suggested provide no clear guide as to how the pecuniary interests should be defined, and it is not easy to see what they would achieve. An alternative approach to that adopted in the Bill would have been to define in detail the pecuniary interests that require disclosure. But that we feel is neither necessary nor defensible. Having placed the Assembly under a general duty, then it is reasonable for us to stop there. It is entirely reasonable to assume that the Assembly will have regard to public opinion on this matter and that it will accordingly make suitable provision to ensure that, whenever there is a risk of a Member's pecuniary interests affecting the discharge of his responsibilities as a Member of the Assembly, then he will disclose them.

The need to provide for direct and indirect pecuniary interests is already recognised by Section 39(1) of the Local Government (Scotland) Act. But, of course, the Assembly when drawing up its standing orders will be aware of this and will take account of it. I sympathise with what the noble Earl has tried to do. In all my years in local government before I came to this House I was meticulous and tried to ensure that my colleagues were meticulous in always declaring their interests, whether pecuniary or otherwise. I would hope that that might become standard practice. Having laid the duty on the Assembly, it is for the Assembly to work out the details.

The Duke of ATHOLL

Would the noble Baroness, Lady Stedman, not agree that by putting this clause in the Bill attention is drawn to the fact that people should declare their interests—I think that that is right—but they should declare only their "pecuniary interests"? That is what worries me. I should like to know whether the noble Baroness would regard the two examples that I have given of a trustee or being on the governing body of a charity as being "pecuniary interests" within the meaning of this clause.

Baroness STEDMAN

That is rather difficult to answer off-the-cuff. I personally would have regarded them as such, and if I were in that position would have declared them. However, I should like to take advice on that and write to the noble Duke.

The Earl of SELKIRK

I always enjoy getting the sympathy of the noble Baroness, Lady Stedman, but it has a limitation in these matters. However, I must say "Thank you". I think that the noble Lords on the Liberal Bench are totally wrong. We have lived under this rule in this House for goodness knows how many centuries, and it really has not presented us with any difficulty whatever.

I should like to give a personal example. I voted against the Burmah Oil Bill which was introduced by a Conservative Government and which I disliked. Someone found out that I was a trustee holding a share in the Burmah company—I am terribly sorry, there we are. Nobody ran me in for that and there was no trouble. You make a declaration and thereafter you can say what you like. With respect, I say that if your wife is a teacher, then say so. Why not? What is the objection? It does not cut you out of anything. It is essentially a question for each man's conscience. However, when we get as far as unit trusts I think that we are going just a trifle too far; we have no idea what may be in a unit trust today or tomorrow, and in any case it is so obscure as not to be of interest.

The Bill does not go far enough. The noble Duke, the Duke of Athol!, has given an absolutely clear-cut reason. With respect to the noble Lord, Lord Drumalbyn, I see no reason why we should not have both direct and indirect interests and then have them defined by standing orders. We are spreading the net wider for standing orders to do that. Most of us noticed what the noble and learned Lord, Lord Wilson of Langside said. He spoke with peculiar authority, in view of the recent offices he has held, as to what happens at this level. Many of us can give examples from one place or another as regards what has happened in this sphere. The standards are not high enough, and that is why I want to make them higher. I tell the noble Baroness that 1 shall not stop here. I shall not press the matter to a Division tonight, but we must set a higher standard. I should prefer to do it with her agreement. If she could possibly try to set a higher standard 1 should be very happy to comply as far as I could. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The DEPUTY CHAIRMAN of COMMITTEES: Amendment No. 346.

Lord DRUMALBYN

I shall not move Amendment No. 346 as I prefer to hear what my noble friend Lord Mansfield has to say.

[Amendment No. 346 not moved.]

6.28 p.m.

The Earl of MANSFIELD moved Amendment No. 115: Page 12, line 21, at end insert ("or to a sentence of imprisonment not exceeding six monghs or both.").

The noble Earl said: I beg to move Amendment No. 115 tabled in the name of my noble friend and myself. As a background to the Amendment may I say how heartily I agree with everything that my noble friend Lord Selkirk had to say. It follows from what he said and the manner in which I think we should approach the setting up of this Assembly that, not only should it have high standards, but if there is anything which occurs which derogates from the high standards which one hopes the Assembly sets itself, then there must be written into the Bill something which, in effect, is a more condign punishment than anything that occurs in subsection (2).

Having said that, of course it would be perfectly open for the Government to say: "No, we shall not enter, we shall not trespass into this arena at all. We shall leave it to the Assembly to make such standing orders as it considers fit, and if a Member of the Assembly contravenes this or fails to declare his pecuniary interest either directly or indirectly then we shall leave it to the Assembly to make what provision it likes."

That is one way of doing it. But the Government have seen fit to go much further than that. In a way, we come back to the apron-string argument again. I do not know whether the noble Baroness was in her place when we went through whether the Assembly should be subject to apron strings and, if there were to be such strings, how tight and thick they should be. But at any rate the Government have included that on summary conviction the person who contravenes that is, the "cheat" of the noble Lord, Lord Tanlaw —is liable to a fine not exceeding £500.

Then what do we do with him? He pays his £500 or whatever it is that he is fined. But unless and until the Assembly produces some kind of standing order, he goes back to his place. To me that seems to be totally wrong. If we, in this Committee are to legislate for the Assembly, then we should go the whole hog. There are long precedents for this, most recently in the Local Government (Scotland) Act which itself derives from Section 80(1)(d) of the Local Government Act 1972. In effect, that provides that where somebody is imprisoned for a term of three months or more without the option of paying a fine, he shall be disqualified from sitting or being a member of that particular local government.

I turn to the effect of this Amendment, and here one has to go back to Clause 8(l)(d). If this Amendment were written into the Bill and a court came to the conclusion that the behaviour of the Member of the Assembly had been sufficiently gross, then, of course, it could sentence him to a period of imprisonment. If it was for a period of three months or more, the effect would be that Clause 8(1)(d) would take effect and he could be removed. It seems to me that this is something on which the Committee has to make up its mind. It is either going to make sensible provision for the dishonesty of a Member in not disclosing his interest, or else it should not attempt to legislate at all and leave it to the Assembly to make its own rules and regulations according to its standing orders.

Viscount COLVILLE of CULROSS

As co-author of this Amendment, I should like to add one point to what my noble friend has said. In a way I would suggest to the Committee that as it stands the Bill is already an apron-string. I want to explain to the noble Baroness in what way I justify that. As my noble friend has said, if, in the Bill, we lay down a maximum criminal penalty, that in itself indicates that Parliament has considered the matter and has decided on the maximum penalty. I know that it happens to be the same as the local government penalty, but I do not think that that matters one way or the other.

Therefore, we have said to the Assembly that, as we in Parliament have decided that this shall be the maximum penalty and that that maximum does not reach the tariff which brings about disqualification, by the same token no standing order ought to be able to lay down a more severe penalty for a failure to disclose a pecuniary interest than Parliament has imposed. Therefore, we shall throw doubt upon the vires of standing orders (possibly it goes as far as that) if they should happen to think—and I believe that they should certainly have the option of doing that if they wish—that they would throw out a Member of the Assembly who continues grossly to misbehave himself in this respect.

I should hate to do anything in the Bill which prevents the Assembly making that kind of standing order because we have passed this form of judgment and inhibited them. It may not go to vires; it may be an argument abcut the desirability of doing it because it would ride contrary to the intention of Parliament. That is why this should be dealt with either one way or the other, but not left halfway in between.

Lord TANLAW

I wonder whether the noble Viscount can help me. Is the offender, so to speak, getting a punishment for life if he is disqualified from attending the Assembly and, therefore, from standing for re-election at some future election? Suppose someone behaves badly in the Chamber to such a degree that the Assemblymen are forced to exclude him for his behaviour; if the penalty in the noble Viscount's Amendment is included in the Bill, it means that the so-called offender, even if he mends his ways, is disqualified for life from standing for the Assembly. Could the noble Viscount clarify that?

Viscount COLVILLE of CULROSS

That cannot be so, because under Clause 8(l)(d) the conviction lasts only five years. After the five years have lapsed from the conviction, he can stand again. I think that that is plenty of time for contrition and signs of penitence.

Lord TANLAW

Is the noble Viscount then saying that the so-called offender gets six months' imprisonment and disqualification from the Assembly for five years?

Viscount COLVILLE of CULROSS

Yes, as the Bill at present stands that could be imposed by a court if the court thought it was bad enough. At the moment so far as pecuniary interests are concerned, but in no other respect, we are saying to the Assembly "No, you cannot disqualify him because Parliament has said that no crime in relation to pecuniary interests is so bad that it is worth disqualification". In that respect, and in that respect alone, the Bill as it stands prevents the standing orders from throwing him out.

Lord DRUMALBYN

I find myself entirely convinced by my noble friend's argument. This is a case where, as I think he said, we have to go the whole hog one way or the other. My first instinct was to leave this within the powers of the Assembly itself to censure and, if necessary, to take further disiplinary action. Experience seems to be that if there is censure in this matter, in another place people resign. I thought that this would be the appropriate way of dealing with this, bearing in mind the enormous graduation in which the actual offence can take place according to the various circumstances. I would not dissent from what my noble friend said about the need to add disqualification if that view is not taken; but I do not think that the clause can stand as it is now.

Lord WILSON of LANGSIDE

I, too, would venture to support this Amendment. I hope that the Government will accept it. It is a pity that they did not accept the last Amendment. I had some difficulty in understanding the view that those who offend against provisions of this kind and have offended while holding public office, as a Member of the Assembly or otherwise, should be treated with anything but the full vigour of the law. As the noble Earl, Lord Selkirk, said in relation to the last Amendment, unless we make that quite clear at the beginning, things will go wrong. I have no doubt at all that this is an area—and I make no apology for repeating this—in which much damage has been done to the standard of public life in Scotland by a lack of strict attention to provisions of this kind. I support the Amendment.

Baroness STEDMAN

In the Commons when this Bill was being discussed the Government were under pressure from two directions to change the provision in the Bill relating to criminal sanction. Mr. Andrew Bennett moved Amendments providing for a register of pecuniary interest and doubling the fine to £1,000. That can be found in Hansard, Volume 940 at column 1221. The Liberals also put down an Amendment seeking to remove the criminal sanction altogether, but the debate was curtailed and the Amendment was not discussed.

The question of imprisonment was only raised at that time indirectly when it was pointed out in the debate that the Salmon Commission had recommended that the penalty for local government councillors who fail to disclose pecuniary interest should include up to two years' imprisonment. The Government have given careful consideration to the level of the fine to be imposed under Clause 25. The case between a fine of £500 and £1,000, which is the maximum on the scale for summary offences, was very finely balanced. But the £1,000 was rejected, because it seemed disproportionately high in relation to the local government fine, which is now £200.

We are sympathetic to the motives behind what noble Lords have said today, but we are aware that the Royal Commission on Standards of Conduct in Public Life recommended that the penalty for failure to disclose pecuniary interests by local government councillors should be a maximum of £400 or six months' imprisonment for summary conviction, and an unlimited fine or two years' imprisonment for conviction on indictment. The Government at this stage are in some difficulty because they are now considering all the recommendations of the Royal Commission, and this consideration will take into account the creation of the two newly-elected bodies exercising the functions of central Government. Therefore, we did not think it was right to introduce a penalty involving imprisonment before the Government have made up their mind about the recommendations relating to the same offence in local government.

Viscount COLVILLE of CULROSS

I fully understand the noble Baroness's difficulty when she has been given that to read out. She cannot possibly answer the debate. Would the Government be prepared to do this? If they cannot make up their mind on Salmon in time to put it in this Bill (if they finally think fit to do so) could they not introduce at least a proviso in this clause which specifically, since it is dealing with standing orders, says to the Scottish Assembly that, notwithstanding this provision as to a fine, standing orders may, if the Assembly so think fit, include further penalties, or suspensions, or disqualifications, or whatever it may be?

The noble Baroness has not begun to meet the point that I made, and I suspect that it has never previously occurred to the Government that such a point existed. I believe it to be a good point. Surely the noble Baroness, instead of just talking about Salmon—and I know that she had to do that—could also talk about the points raised in this debate.

Baroness STEDMAN

I thank the noble Viscount. So far as I know this is not a point which has been considered. If it will help him and the Committee in any way, I shall take it back and have a look at it.

The Earl of MANSFIELD

In view of the noble Baroness's gracious assurance, I shall withdraw the Amendment for tonight.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clause 26 [Committees]:

6.43 p.m.

Lord DRUMALBYN moved Amendment No. 347: Page 12, line 22, leave out from beginning to C' committees") in line 23 and insert ("The Assembly shall appoint").

The noble Lord said: This Amendment is linked with Amendment No. 348, and it is one which I would commend to the Committee because it is one that has not been discussed. The noble and learned Lord will recognise it as having been included in the Scotland and Wales Bill originally. I believe that it was not discussed then. The noble and learned Lord also said earlier that he wanted to leave this kind of matter to the Assembly, but that he had in mind all the things they had in their White Paper originally. If one refers to Our Changing Democracy on page 16, paragraph 76, it says: The Government believe it to be important for the success of the Assembly that all its Members should take a constructive part in the work devolved to the Scottish administration. The Assembly will therefore have a highly-developed system of committees to advise the Executive and investigate what it is doing.". Then it goes on to describe what is to be done, which is followed very much in the provisions here. These are additional to the kind of provision that we were discussing earlier as to the way in which a Bill should be handled once it came to the House. The general concept is that there should be a Committee corresponding to each function of Scottish Secretaries and that, before any major matter of policy is decided, or before a major Bill comes before the Assembly, the question should be examined by a Committee.

Briefly, what Amendment No. 348 proposes is that there should be a Committee to: examine the exercise by Scottish Secretaries of powers with respect to matters to which the functions of the committee extend". Then the next subsection deals with Bills. It is there intended to secure: that no Bill is introduced in the Assembly.. except after consultation with the committee…". Then you come to Instruments. It is here intended that on any instrument of a general character the Scottish Secretary should consult a committee about it with respect to the matters to be dealt with in the Instrument.

Then subsection (5) says that the Committee shall determine whether the special attention of the Assembly should be drawn to the instrument or proposed instrument on such ground as set out in the Amendment. Subsection (6) goes on to say that: No Committee…shall include a Scottish Secretary or an assistant to a Scottish Secretary. This is a desirable provision, although I do not think that it was originally in the Scotland and Wales Bill It makes an exception in favour of the law officers, who would be of great assistance to the committee. Then there is a general exception where emergency legislation is required and where, a Scottish Secretary certifies that the public interest requires the introduction of a Bill or the making of an instrument without the consultation required …".

These would seem to be sensible provisions They follow much more closely the procedure in dealing with legislation in the French Assembly than what we have here; but I understand that people are getting accustomed to this kind of thing in the European Assembly as well because the provision is quite common in European countries as a whole It would seem that it would give the Members of the Assembly a great deal more day-to-day control of the Executive

It has to be remembered that there will be many more Members of the Assembly according to the Government's plans proportionately than there are Members of Parliament Therefore, there would be the manpower, the necessary number of Members, to be able to fulfil these functions. It is generally suggested that it would not be desirable for Members to belong to more than one committee because it is found, certainly in the French Assembly, that this becomes a very exacting and onerous job to carry out.

As this has not been considered at all, it seems to be desirable that we should at least take notice of it in this House, and I am anxious to know the opinions of Members of the House. Whether it should be included in the Bill is another matter, because this would depend on the extent to which we are going to lay down in this House how the Assembly conducts its affairs. I think I can safely leave the matter here at this stage, because I know that the Government adhere to their previous view that this would be a good innovation. I hope that we shall be able to further it in the course of the Bill, even though we do not have to spell it out quite as precisely and as extensively as this Amendment does. I beg to move.

6.50 p.m.

The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)

There is a good deal of interest in the Amendments of the noble Lord, Lord Drumalbyn, and at the outset I would say I accept that the Government emphasis has departed from the position which the Government adopted in paragraph l6 of the White Paper. I do not think there is any doubt about that. The Government's mind has been changed at this point because of the criticism made in the other place when the committee structure contained in the White Paper was severely criticised. For that reason, the Government position has moved from an earlier stage.

Lord DRUMALBYN

I did not quite catch whether the noble Lord said that the Government had or had not departed from their previous position.

Lord KIRKHILL

The Government have departed from their earlier position in the light of the criticism which was made in the other place when the White Paper was debated. I was about to say in passing that I should look forward to Lord Drumalbyn's support when we came to discuss the Wales Bill because the committee system is spelt out in some detail in that Bill. However, I suggest there is a difference between that Bill, which will set up an Executive Assembly, and the position as the Government see it under the Scottish Assembly provisions. For the reasons I have been explaining, the Government have not felt it right, necessary or, indeed, desirable to legislate for every last detail of the workings of the Assembly or its relationship with the Executive, which is the sort of emphasis we were debating on earlier Amendments today.

It is true that the Scotland and Wales Bill included rather more detail of this nature than does this Bill, but the Government have had to bear in mind the criticism that has been expressed. In saying that, I do not want to suggest that the Government are out of sympathy with the tenor of the noble Lord's Amendments; indeed, we hope the Scottish Assembly will make full use of the committee system and that there will be close collaboration between the Executive and the Assembly committees. However, we think it would be a mistake to lay down everything in advance as proposed in the Amendment.

In considering the Bill, we must bear in mind—we were saying this earlier from these Benches—that we are legislating for what we consider will be mature and responsible people who will be Assembly men; indeed, perhaps some Members of the Assembly will be and will continue to be Members of your Lordships' House. I do not think we shall be legislating for people who are entirely inexperienced, and this really brings us back to the belt and braces argument that we had earlier today. As 1 was saying, I should have no complaints if the Assembly set up a committee system along the lines indicated in the Amendment, but the Government emphasis is that the Assembly should be left free to determine its own arrangements. If we were to lay down too much in advance, I think we should be faced with the prospect of having to pass further legislation here soon after the Assembly was set up, and I do not think that is a prospect which your Lordships would relish. For these reasons, I hope Lord Drumalbyn will not press his Amendment.

The Earl of LAUDERDALE

I have some sympathy, as I always have when the noble Lord, Lord Kirkhill, speaks, with what he said. It is not simply a matter of setting up a committee system but of setting up a new kind of committee system, a sort of pre-First Reading committee. It will be within the recollection of noble Lords that, about 18 months ago, we referred to the Procedure Committee of this House a proposal not dissimilar to the one we are considering; that we should have established here a committee, and later several committees, related to the functions of several Departments of Government so that there could be some pre-legislative committee study before a Bill actually came before the House. Perhaps because, neither here nor in the other place, have we yet got around to adopting this method, I can see some force in the Government argument that the time has not come to present it, as one might say, "uncooked" to the Scottish Convention.

Perhaps Lord Kirkhill will bear two points in mind on this aspect. The first is that this sort of system has worked well and advantageously in Europe. The second is that we ourselves have found that one of the disadvantages of our own established procedure, both in this House and in the other place, but particularly in the other place, is that Committee sittings on a Bill can be unduly drawn out, for whatever purpose; it is usually for a political purpose and has no relation to the substance of the Bill. That has led in turn to the evil of the guillotine. If there were a system to make possible the pre-legislative digestion of Government proposals, the need for the guillotine on the one hand and the case for prolix operations on the other hand would be avoided.

We are discussing a Bill of which I believe about 65 out of 83 clauses were not even discussed in the other place because of the working of the guillotine here is an approach which could make the guillotine and the prolix Committee stage procedures unnecessary and which might result in a great improvement of Parliamentary procedure generally. Having said that, I only asked the Government to give thought to this aspect and not to close their minds entirely. As I say, I feel some sympathy with the answer given by Lord Kirkhill, in that we have not yet got round to working such a system here and, if that is the case, who are we to teach others? However, I hope the Government will not close their minds entirely to something along these lines.

The Earl of PERTH

If I understand the position of the Government, they have considerable sympathy with what the noble Lord, Lord Drumalbyn, said, but cannot at this stage go further. On earlier Amendments dealing with the standing orders, attention was drawn to Clause 7 and what the Secretary of State may do. I suggest that, as several noble Lords asked earlier, we should be told on Report what sort of lines will be laid down by the Secretary of State for the procedure or standing orders because that might help us on the issue that is being raised by Lord Drumalbyn. If we knew what the Secretary of State was likely to say in general terms, that would be helpful, and the point now being raised by Lord Drumalbyn would seem an admirable point to include in the sort of information given.

Lord KIRK HILL

My noble and learned friend replied to that point earlier. His reply may not have been entirely explicit, but it was as far as my noble and learned friend could go at that point.

Lord DRUMALBYN

I am grateful to the noble Lord, Lord Kirkhill, for what he said, though I had hoped for some more concrete indications of how the Government's mind was working on this matter. I doubt very much whether the regulations which the Secretary of State is to make early on as to the procedure to be followed, until the Assembly has made its own standing orders, will cover this sort of matter. I should have thought it would deal mainly with the actual setting up of the Assembly; how it should get into line, so to speak, for taking the steps that will enable it to make its standing orders and get under way.

I should have thought that the Secretary of State would be wary, as the noble Lord has been wary tonight, of going into considerable detail in the early stages. Therefore, I would have no great hope that the Secretary of State would have much opportunity to give the ball a kick in the direction in which I am suggesting it should be kicked in those draft standing orders that he intends to introduce in order to get the Assembly started. I suppose that the only answer can be the kind of Press publicity and so forth that one would expect to be given to this kind of innovation—as it would be an innovation to this country, though not elsewhere—and if the Government set their minds against this proposal being put into the Bill, then that is the best one can hope for. But I would still hope that in considering how to deal with this whole area of the Bill which deals with standing orders, they would think about this again, and that if it seems appropriate to introduce this innovation in the Bill itself, they would do so.

The mere fact that the Scotland and Wales Bill was criticised for being much too long, and for going into too much detail, ought not to be quoted on every occasion as a reason for not putting something more into this Bill; and I hope that it will not be. This is a matter on which the noble Lord has sympathy. That being so, I do not for a moment suggest that my Amendment could be accepted in its present form, but I should have thought that, at any rate, again there should be a provision which could lead to a favourable consideration of this question by the Assembly, so that when it makes its standing orders this should be very much in its mind. ft would be possible to devise a very much compressed Amendment. This Amendment has been taken, largely, from the Scotland and Wales Bill, but I should have thought that consideration might be given to having this kind of guideline in the Bill.

Lord KIRKHILL

The Government see merit in quite a number of Amendments which are before your Lordships, but in our judgment we feel that it may be a mistake to over-particularise in the Bill, especially given the state of opinion which seems to have emerged very clearly on the Scottish scene in relation to earlier versions.

The Earl of SELKIRK

Will the noble Lord bear in mind that in this matter there is no revising chamber, and that a pre-legislative chamber, or pre-introduction chamber, or, alternatively, some kind of revising chamber—even the best chambers in the world—sometimes do not absolutely complete word for word the perfection of Bills which may otherwise be achieved? This point may apply in relation to Scotland, too.

Lord DRUMALBYN

I do not want the noble Lord to particularise as far as I have in this Amendment. What I want is to get the spirit of my Amendment, in a compressed form, into the Bill, and I hope that he will consider this. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord WALLACE of COSLANY

I think that this would be a convenient moment for the proceedings of the Committee to be halted for one hour.

[The Sitting was suspended at 7.4 p.m. and resumed at 8 o'clock.]

The DEPUTY CHAIRMAN of COMMITTEES (Lord Alport)

I am advised that if Amendment No. 323 is agreed to, I cannot call Amendment No. 116.

Lord GRAY moved Amendment No. 323: Page 12, line 23, leave out from ("committees") to end of line 25.

The noble Lord said: This is a probing Amendment and, therefore, any question of its compatibility with the Amendments of my noble friend Lord Drumalbyn, between which my Amendment is sandwiched, need not arise nor be discussed by me. The matter which I wish to raise is a general one. By means of this Amendment I am seeking to discover whether, within the single permissive sentence of Clause 26, there is hidden, by implication, an opposite and negative provision. As the clause stands, it permits the Assembly to appoint committees with functions restricted to devolution matters.

The Bill, as we all know only too well, has had plenty to say about the legislative competence of the Assembly. However, although I stand to be corrected, I do not believe the Bill has anything to say about what the Assembly is competent to discuss. I believe there is no such restriction in the Bill as it stands at the moment. If there is no such restriction, then, not only can they talk about anything, but there will surely be subjects closely touching Scottish interests, special interest, which they will wish to discuss and which it would be singly appropriate, I suggest, for the Assembly to have committees consider and report on, although the subjects will lie outwith the Assembly's legislative competence. How about a standing committee on relations with Westminster? How about a committee concerned with the quality of representation of specialist Scottish interests by United Kingdom embassies, consulates and other overseas agencies?

I know that later on we shall come to the general question of how wide Assembly debates should be allowed to range, so for now I shall content myself with asking the noble Lord who is to reply whether there is any intention to restrict committee activity implicit in Clause 26, and what the Government's views are on the points I have made. Before I sit down, I might perhaps comment that, in view of what we have heard from the triumvirate on the Front Bench opposite this evening about apron strings, et cetera, it might not be surprising if they looked with some favour on my Amendment. I beg to move.

Earl FERRERS

I wonder whether it would be to the convenience of the Committee if we were to discuss my Amendment at the same time, because it in fact touches on the same point. The only thing is that it has totally the reverse effect to that of the Amendment moved by my noble friend, but it might be simpler for the noble Lord who is to reply. In an earlier Amendment the noble Lord, Lord Kirkhill, said that the Assembly should be left free to determine its own arrangements. I personally think that that is too wide a brief. Evidently my noble friend Lord Gray thinks that this is suitable, that they should set up what committees they like and discuss what they like. In my Amendment I suggest that we should insert the word "only", so that the clause should read that they could set up committees … with functions extending only to any matter which … is a devolved matter". This is totally the reverse effect of my noble friend's Amendment, because he wants them to discuss everything.

I see the drawbacks to be that we have the situation in which various matters are devolved, such as housing, transport and education, and certain matters are reserved, such as taxation, the economy, foreign affairs and so forth. It is inevitable that the Assembly, when it discusses housing and transport, will touch on, say, the economic state of Scotland, or the economic state of the United Kingdom. This clause permits the Assembly to set up committees extending to any matter which is a devolved matter. Of course, it is perfectly possible to say that the economy, and even taxation, extends to housing or to education, both of which, of course, are devolved matters. Therefore, it might be said that the Assembly would be perfectly entitled to set up a committee on taxation or the economy because it must be able to discuss everything in order to know how it affects housing in Scotland. In a similar way, you could say that, though North Sea Oil has not been devolved to Scotland, yet inevitably it is going to be a subject of discussion and, therefore, let the Assembly set up a committee on it.

Now if these other committees are set up, such as my noble friend Lord Gray suggests, they will inevitably discuss matters over which the Assembly has no control, and I would have thought that this would inevitably lead to a clash in some way between Westminster and the Assembly. I would have thought that the subordinate Assembly should set up committees only for matters over which they have jurisdiction, and not for matters over which they have no jurisdiction. After all, these committees are not Party committees; they are, or they will be, effective and powerful Assembly committees. As I understand it, they will he permitted to call evidence, to ask for civil servants or for a Minister to come and explain what the Department intends to do or what the Minister intends to do —I said "a Minister"; I mean a Scottish Secretary—and they will watch over a Scottish Secretary. They may make suggestions on policy.

Is it really right that there should be such a committee which has all these wide powers? As I understand it, they will have them—and the noble Lord, Lord Kirkhill, will correct me if I am wrong. Is it right that these Committees should in fact have the power to call people to discuss matters over which they have no jurisdiction?

Lord KIRKHILL

I apologise for intervening—it is something which I rather dislike doing, particularly in the earlier parts of a noble Lord's remarks —but the noble Earl will keep in mind, will he not, that there can be no question of compelling a Minister, for instance, to attend? I thought I would make that point at the outset.

Earl FERRERS

That is helpful, and perhaps the noble Lord will be good enough to explain how he visualises these committees working. Recently—a month or so ago—we read in the papers about the business of, I think it was, the Select Committee on Nationalised Industries in another place calling the chairman of the British Steel Corporation. One wonders whether these similar committees will have that type of power. I understand the noble Lord, Lord Kirkhill, to say that they will not be able to call Ministers.

One wonders whether they will be able to call the chairmen of nationalised industries, or whethet they will be able to take evidence. If they cannot, that is certainly a curtailment of their power; but one wonders whether it is in fact right to have set up committees, which presumably arc going to be fairly powerful bodies, over matters which are not devolved at all. That is the reason why my Amendment suggested, in contrast to that of Lord Gray, that these committees should be restricted only to those matters which are devolved. If they are not so restricted, I can visualise that there would be conflict in the end between Westminster and the Assembly, and it will make it unclear to people what locus standi those committees have if they have the right to discuss and consider evidence on matters over which they have no control. I mention this in passing on Lord Gray's Amendment. I thought it more convenient than to have a separate debate on my Amendment.

Lord GRAY

Perhaps I could say to my noble friend Lord Ferrers that I think he has, in part, misunderstood me. The form of my Amendment was chosen to enable me to make my point which is an interrogative one; namely, whether the restrictive aspect of the clause prevented committees (which would not have functions in terms of legislation or deal authoritatively with matters which clashed with Westminster from being set up because in the Bill there was this restriction as to what was apparently the only sort of committee that might be set up by the Assembly.

Lord KIRKHILL

I thought it might be convenient in a general way to discuss these Amendments together. It may be of help to the noble Lord, Lord Gray, if I were to respond to his direct point now. The short answer is, No. This clause is essentially a permissive clause. There is nothing to stop the Scottish Assembly setting up its own unemployment committee. I give that as an example. The particular Department concerned is not devolved to that Assembly, but there should be nothing within the Bill or within this clause to prevent that course of action being followed by the Assembly. I think that is the short answer to the question.

Lord MACKIE of BENSHIE

I would say that you cannot stop the Assembly discussing anything. If you take the National Farmers' Union, they have political committees and economic committees; the CBI have the same; the trade unions have political and economic committees about things over which they have absolutely no jurisdiction but which affect their lives enormously. The Scottish Assembly, while (I would say, happily) assenting that the powers to regulate the economy and other matters lie in Westminster, will want to discuss the economy and will want to set up committees to study the matter in order to put a peculiarly Scottish viewpoint both in Westminster and, perhaps, in Brussels. I do not think that the question of particular committees on Bills, which obviously should be a different sort of committee restricted to the Bill in question (and that Bill must be within the powers) would negate any setting up of study committees which are necessary and, I think, completely in line with the Assembly's point of view in representing the people of Scotland and their interests.

Lord KIRKHILL

I agree with the remarks made by Lord Mackie. That is certainly how the Government see the situation evolving. I can be more specific to the noble Earl, Lord Ferrers, and reiterate that so far as ministerial attendance is concerned there can be no question of compulsion. Ministers can be asked. The compulsion contained within the clause relates only to the Assembly's own people. There is no question but that somebody working for the Assembly can be compelled to attend a particular committee. Beyond that the remit of this clause does not extend.

8.15 p.m.

Baroness ELLIOT of HARWOOD

May I ask a question about Clause 26? I speak as someone who has always been interested in the committees set up by nationalised industries and other industries to be concerned with consumer affairs. It is consumer affairs that I am concerned with under this clause. The nationalised industries, like railways, airways and others which have Scottish importance and interest as well as important English interests, at the moment have United Kingdom consumer committees which are concerned with the users of the airlines or railways or the Post Office and so on.

If you set up committees in Scotland, will those committees be able to discuss the United Kingdom aspect of what I would call consumer affairs, or will they be limited to the Scottish aspect of, let us say, the railways or airways? My feeling is that it would be important not to isolate the interests of consumers, but that if some of these interests are devolved and you do have a Scottish interest which is separate from the United Kingdom interest, the interests of the consumers should be represented on both sides. I feel that it would be better to keep the United Kingdom interests in these industries, because everyone who uses the airlines or railways or whatever the industry is, feels more or less, the same. We all want good railways, better railways, good airways, better airways. As the noble Baroness, Lady Burton, has often said, we want the interests of the consumers to be fully represented on the nationalised bodies.

I should like the noble Lord to tell me whether in the plan which is put forward under Clause 26 there will be the possibility of the joint interest of the United Kingdom, as opposed to the devolved interests, represented on these committees. I think it is important. From my contact with the Scottish Consumers' Association I can tell the noble Lord that they are very worried as to whether their interests will be represented if the matters are devolved; and, if they are not devolved that their interests will still be represented on the United Kingdom committees. I speak with the interests of those people at heart, and I hope very much the noble Lord will be able to tell me what is the situation under Clause 26.

Lord KIRKHILL

As the noble Baroness would freely acknowledge, matters which stand devolved are capable of legislative action—but only matters which stand devolved. As to other matters which will undoubtedly affect people living in Scotland, these matters can be discussed. There is nothing in the Bill to stop the Assembly setting up committees to discuss matters of considerable interest to people who live in Scotland. If the matter under discussion is not a devolved matter, it stops at the point of discussion. It does not go any further than that within the competence of this Bill.

Earl FERRERS

In other words, as I understand the noble Lord, the Assembly can, for instance, set up committees on taxation to discover the impact of taxation on Scotland, even though they have no jurisdiction over taxation?

Lord KIRKHILL

The short answer to that question is undoubtedly, Yes. An example is that there are some local authorities who, for example, form a special committee to ensure that their catering department does not buy South African Outspan oranges. There is usually nothing within the competence of local government to stop them from so doing. Similarly within the Assembly, if they wish to discuss these matters.

Lord BURTON

I thought it was the noble and learned Lord, Lord McCluskey, who earlier on congratulated the Government in cutting out a lot of the unnecessary parts of the original Bill. I cannot understand now why the Government are not accepting my noble friend Lord Gray's Amendment because it seems that these words are unnecessary. The noble Lord, Lord Kirkhill, has said that they are only permissive. But why put them in at all? I was thinking of local government. The local authority can set up committees on matters in which they have no jurisdiction at all; they are merely pressure groups. I can think of committees on bus companies, telephone authorities and one thing and another. Cannot Lord Gray's Amendment be accepted?

Lord KIRKHILL

It is essentially a matter of judgment. I would not claim the Government's judgment at each and every point of the Bill is always the judgment which noble Lords should accept. But this case concerns a permissive cause and is not very much more than a nudge to the Assembly that it might go in a certain direction. To that extent, surely the clause is useful.

The Earl of PERTH

Do I understand this correctly, that although they may appoint committees on matters which are devolved, it is also within their power to deal with matters which are not devolved?

Lord KIRKHILL

It is within their powers to discuss matters.

Lord DRUMALBYN

I find great difficulty with this. The clause is pretty specific. It does not say that the standing orders of the Assembly may not include provisions for the appointment of committees dealing with anything under the sun. What it does say is that it may include provisions for the appointment of committees with functions extending to devolved matters. I should have thought that that implies that the functions of committees must relate to devolved matters in some way or another. They may go beyond that, but it seems extraordinary to put a clause like this into the Bill and then allow the committees to be set up to deal with any matter affecting Scotland. I should have thought my noble friend's Amendment to put in the word "only" was a very sensible one. I hope that a little more direction will be given to this. I have an Amendment later dealing with Motions. That is a totally different matter. But when one studies matters in committees, and there are committees of inquiry, surely those must be related to the functions of the Assembly.

Lord WILSON of LANGSIDE

I find this fascinating. May I pursue the question of the Outspan oranges? There will be some Members of the Assembly full of all kinds of very responsible, public-spirited matters; but there will be a few with their "hobby-horses". Perhaps Outspan oranges might be an important issue for some people. But there will be others with "hobby-horses". Is the noble Lord really suggesting that this Assembly will have time to establish committees just, as it were, off the tops of their heads about any issue of which a Member may feel concerned?

Lord KIRKHILL

If I may respond to the noble Lord, Lord Drumalbyn, and the noble and learned Lord, Lord Wilson of Langside, I was attempting to say that the clause, as it stands, does not debar the Assembly from setting up a committee to discuss anything which the Assembly wishes to discuss. It can only legislate on those matters which stand before it in a devolved manner. Outspan oranges was perhaps an unfortunate example. It was one which came quickly to mind, a verbal "flannelgraph", and I regret having said it now.

Lord MACKIE of BENSHIE

Perhaps the Minister should look at this again. He nudges the Assembly towards saying that they may set up committees with functions extending to any matter which is devolved. It could be taken in a negative way to say they could not set up other committees, simply study committees. Perhaps this matter needs further consideration.

Earl FERRERS

I am still worried about this. I do not want to make an issue out of it but I thought that the Government, in the Bill, meant to say that the Assembly could set up committees with functions extending to any matter which is a devolved matter. I thought, to make that absolutely clear, that if one inserted the word "only" it would be perfectly clear that one could set up committees only for those matters which are devolved. The noble Lord, Lord Kirkhill, now says that they can discuss anything they like. If that is a fact, then surely my noble friend's Amendment ought to be accepted. What is the point of saying you can set up committees on a devolved matter if you can set up committees on matters which are not devolved, which are reserved? It must be either one or the other. I thought the Bill insinuated that the Assembly should not set up committees for matters which were not devolved; but now the noble Lord says it should do so. I find this confusing.

Lord KIRKHILL

I do not think I can add substantially to my earlier remarks. I will take up one point which the noble Earl has made. We would consider adding the word "only" to be unnecessarily restrictive. I remarked earlier that I think it is a question of judgment. I do not think that there is more to it than that.

Lord GRAY

I am grateful to the noble Lord, Lord Kirkhill, for having dealt with my Amendment in the way that he has. I am grateful to all noble Lords who have taken part. It is interesting that, caught in the cross-fire between myself and my noble friend Lord Ferrers, the noble Lord, Lord Kirkhill, has surprised a number of noble Lords as to exactly what is the nature of this clause. In the circumstances, and perhaps with a view to this matter receiving further consideration, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 116 not moved.]

8.29 p.m.

Lord DRUMALBYN moved Amendment No. 117: Page 12, line 25, at end insert ("and with or without powers to send for persons and papers as the Assembly may decide when appointing each Committee").

The noble Lord said: The noble Earl, Lord Selkirk, asked if I would associate his Amendment with mine. The purpose of these two Amendments—and they have the same purpose—is to empower (and Bills do empower things to happen) the committees to send for persons and papers. The difference between the noble Earl's Amendment and mine is that I leave with the Assembly the power to decide in which cases a committee should be empowered to send for persons and papers. I should have thought that this is right. It is essential that if they are having certain forms of committee of inquiry they should be able to send for persons and papers in the same way as committees of this House and the House of Commons.

Where I think my Amendment is defective and where the Amendment of my noble friend represents an improvement is that I feel there has to be some restrictions on the persons who may be sent for. I am not at all certain that even my noble friend's Amendment does not go a little too far in that respect, but at least he excludes the possibility of sending for Members of Parliament or for papers which relate to the defence of the Realm. I think that is obviously so, and there ought also to be a case for excluding papers which enjoy Crown privilege, and one thing and another. I did not spell these out because I really wanted to ascertain the Government's thinking on this matter.

I hope that the noble and learned Lord will be able to make some sympathetic noises, at any rate, about these Amendments because I do not believe that the power to send for persons and papers is inherent in the powers of the Assembly and I think it ought to have them. I do not think I need say more than that. I beg to move.

Lord MACKIE of BENSHIE

May I say that this Amendment appears to stress that there are two different sorts of committee. Certainly, it is only right that a committee on a Bill which is within the devolved powers of the Assembly should be able to send for persons and papers. I think that, when the Assembly sets up a study group, it is in a different position, and it seems to me that the clause as it stands restricts the ability of the Assembly to set up the two different sorts of committee a study committee and a legislative committee on a Bill. That is as far as I would care to comment on this point.

Lord KIRKHILL

While appreciative of the concern of the noble Lord, Lord Drumalbyn, which he has expressed so succinctly, the Government's difficulty in accepting this Amendment is that we take the view that it would be inappropriate for Assembly committees to have the wide-ranging powers that are suggested. I am advised that they would in any event be unenforceable in certain circumstances. What sanctions could the Assembly employ against a private individual, for example, who failed to respond to an Assembly summons?

Parliament's powers in this respect derive from the kind of inherent privileges which the Assembly will not have and is not intended to have. To accept an Amendment of this kind would introduce for the Assembly a level of authority which is appropriate, outside the courts of the land or for law enforcement purposes, only to a sovereign Parliament. It is, of course, desirable—and this is perfectly possible under the Bill as drafted—that the Assembly should be able to give its committees adequate powers to require, as I said earlier, its own people to appear before, and provide information for, Assembly committees. That would extend to Assembly officers and staff, to Scottish Secretaries and their staffs and to the members and officials of bodies operating directly and exclusively under the Assembly's control. But, in the Government's view, it would be wrong to go beyond this; and I have been suggesting that it is difficult to see how powers going further than that would be capable of being enforced. I think that that perhaps answers the point made by the noble Lord, Lord Mackie of Benshie.

Lord DRUMALBYN

I think that if the noble Lord will look into this he will find that, generally speaking, the power to send for persons and papers is not very easy to enforce. There are many cases in which this is so. Admittedly, the courts can make it a contempt. If somebody is subpoenaed, that is a different matter: they are subpoenaed. But when persons and papers are sent for people do comply, and sanctions have not really been necessary. I do not say that you can send somebody to the Tower, or something of that kind for not complying; but it does not happen. Nevertheless, there is the power to send for persons and papers and I think it is a good thing that that should be so. I suppose that to talk of the majesty of the Assembly would be to use the wrong word, but at any rate the authority and dignity of the Assembly would be enhanced by means of this power. I really do not think it will be found to be sufficient to send for your own people, as the noble Lord has succinctly put it—meaning civil servants who serve the Executive and officers of the Assembly, and so on. I do not think that is good enough: I do not think it would be effective. I recommend the noble Lord to think about this a little further, because I think the power is required here. Subject to that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 306 and 308 not moved.]

8.36 p.m.

Lord DRUMALBYN moved Amendment No. 349:

Page 12, line 12, at end insert— ( ) In naming persons to be members of a committee appointed under this section, the Assembly shall secure that the balance of parties is, so far as practicable, reflected in the membership of the committee.". The noble Lord said: I think this is an important Amendment. There will be a "Parliament "of 150, and it looks as if there will be a considerable number of committees. Local authorities differ in their practice in the manning of committees, particularly when it comes to a chairman's committee, or something like that. They are rather apt to put people all of one Party on the committee. I think that if the committee system is to work in the way I hope it will, each committee should be a microcosm of the Assembly and should be fully representative of all the Parties there. I think this is quite a reasonable obligation to lay upon the Assembly and I hope that the noble Lord will be able to accept it. We have waited rather a long time for something to be accepted!

I think this is a sensible and important Amendment and I do not expect for one moment that the Assembly would resent this being imposed simply because local authority practice varies so much. If this is what we think should happen, then it should go into the Bill and I beg to move.

Lord KIRKHILL

I apologise to the noble Lord for keeping such a straight bat this evening, but this is a particular phase of the Bill from my point of view. I agree with the noble Lord that the substance of his Amendment is of importance and is certainly worthy of being discussed. But again it comes down to this question of judgment. If we had an Executive Legislature, as is envisaged in the Welsh Bill, then the argument is incontrovertible. I do not agree with his argument when we have the question of a Scottish Executive with legislative power. It is because of that distinction that I find difficulty in accepting this Amendment.

Earl FERRERS

What worries a lot of us is that so much power is being given to the Scottish Assembly to run themselves that Westminster has really absolutely no control at all; and the noble Lord has often said, as have others, that here we are dealing with responsible and sensible people—but we do not know that we are. If that is the case, of course, we need write very little into the Bill. But the whole purpose of Parliament and of Acts in law is to cater for the difficult cases and to cater when things go wrong. This Amendment seems to be perfectly reasonable. All it says is that: the Assembly shall secure that the balance of parties… is reflected in the membership of the committee". That seems an admirable thing to do. The noble Lord, Lord Kirkhill, says it is quite right. Why should it not be in the Bill?—because it is perfectly possible that you might get an Assembly which takes the view of: "No, we do not want the membership to be reflected appropriately or adequately; we want it to be reflected our way." I cannot see why it cannot be put into the Bill.

Lord MACKIE of BENSHIE

In this case, I wholly agree with the noble Earl, Lord Ferrers. The noble Lord the Minister has vast experience—nobody more so—of local government in Scotland, and he knows that wherever you find local government going wrong and getting into a beastly condition, which is bad for the subject, the ruling Party always grabs all the convenors' seats for itself. That is always a sign of bad local government. In the noble city of Aberdeen it hardly ever happens, because it is an object lesson in local government. When the Government are entrenching some clauses in the standing orders, one like this is probably the best that can be put in, because it gives a degree of fairness which is absolutely essential if we are to have a reasonable governmental system in Scotland, and it appears to be in line with experience.

Baroness ELLIOT of HARWOOD

I should very strongly like to support this Amendment. There are quite a number of areas in Scotland where there is no tremendous Party interest in local government. In the area which I represented for a great many years, the Party was hardly represented. One stood for local government and was accepted, practically on a non-Party basis, if you were prepared to do the work and did it to the satisfaction of your constituents. It would be a great pity if, when people in the Assembly were appointing committees for certain jobs, they did not take not what I would call a non-Party view, but a generous liberal view of the number of people and of the different types who could be members of committees.

This Amendment is a good opportunity for the Government to show that they do not want to be so tremendously Party-political about many aspects of Assembly government which will not be essentially Party political. In many cases, they will be in the general interest of the public, and the Government will be missing an opportunity if they do not accept this proposal which seems eminently suitable. It does not rule out the fact that, if one wants to appoint very Party political people, one can do so, but it also makes it possible to appoint people who are not inclined very strongly one way or the other.

Lord KIRKHILL

I said earlier that mine was a straight bat. I turn slightly to cover, in the light of your Lordships' debate, and I agree to reconsider.

Lord DRUMALBYN

Did the noble Lord say that he accepts the Amendment?

Lord KIRKHILL

No, that is going a little too far. I said that I would reconsider, in the light of all that has been said.

Lord DRUMALBYN

I am so disappointed. I hope that the noble Lord will agree to this Amendment, in the long run. Of course, if we had proportional representation we should inevitably need to have this. But it is all the more important if we do not have proportional representation, and perhaps the noble Lord will bear that in mind, too. I am much obliged to the noble Lord and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 26 shall stand part of the Bill?

Lord HYLTON

I should like to support, as strongly as I can, the pleas made earlier today that the directions which the Secretary of State will, in due course, lay under Clause 7 should be made available to your Lordships' House. It quite frequently happens when Bills are going through your Lordships' House that many important points are left to be dealt with later on by subordinate legislation or, sometimes, even by circular guidance. When that happens, it is frequently asked that these pieces of paper should be produced, at least in draft, and Governments of various complexions usually say "We cannot possibly do that, because we shall need to have consultations with the various interests who will be affected". In this case, we are talking about directions which will have some force, or which will give some degree of guidance, in advance of the Assembly deciding upon its own procedure and standing orders, so I can see no reason why what the Secretary will eventually produce should not be made available. I very much hope that the Government will be able to accept that before we reach Report stage.

Clause 26 agreed to.

8.46 p.m.

Lord DRUMALBYN moved Amendment No. 350: After Clause 26, insert the following new clause—

Provision of Bills not within legislative competence.

(". The standing orders of the Assembly shall include provision for the Presiding Officer or any person acting on his behalf, to disallow discussion on any provision of a Bill by the Assembly or any Committee of the Assembly which, in his opinion, would prevent the Bill from being within the legislative competence of the Assembly.").

The noble Lord said: We have had very long discussions on trying to make certain, so far as possible, that the Bills that go to the Secretary of State comply, in practice, with the lines of demarcation between the devolved and the reserved matters, because, as we have seen, the complications in dealing with Bills of this kind are very great indeed. I think everyone has said, at all stages, that we want to avoid Bills being passed by the Assembly which will not ultimately become, or are not liable ultimately to become, Acts of Parliament through being submitted to Her Majesty for Royal Assent.

One of the ways suggested was pre-examination of Bills, and it was explained that, very largely, this would be done by the Law Officers. Nobody said which Law Officers, but I suppose that it will, in the first place, be the Law Officer of the Assembly who will consider this matter and, no doubt, if the Lord Advocate is feeling in a good mood he, too, will be prepared to give his advice. In the House of Commons, the Speaker in the House and the chairman in a committee have power of selection of Amendments, and, obviously, they will not select Amendments that are ultra vires or beyond the scope of the Bill that is under consideration.

What this Amendment seeks to do is to introduce a parallel procedure for the Assembly. Of course, it is not the same and specific provision needs to be made in the standing orders. I hope that this is possible and that the procedure that I have in mind is the right one; namely, that the presiding officer, as the equivalent of the Speaker in the House of Commons, will be the right person to "disallow discussion", which means not to select an Amendment; and that in a committee it will be the chairman who, in the words of the Amendment, will be "any person acting on "behalf of the presiding officer.

There is difficulty about disallowing discussion upon any provision in the Bill, to the extent only that the presiding officer must have expert opinion. I am not absolutely certain that exactly the same provision as applies in the House of Commons would be appropriate. In the Commons, for example, Mr. Speaker has his own legal adviser. Presumably the adviser to the Assembly would be the law officer, who might also have his own legal adviser. I am sure that the noble and learned Lord will say that the principle is worthy of consideration. Indeed, the principle is unexceptionable. However, I should not be at all surprised if in some way or another the drafting is defective.

I hope that the noble and learned Lord will regard this as a real aid to the proceedings in the Assembly and as a real help towards ensuring that the legislation which the Assembly passes is not ultra vires and does not go beyond what it is entitled to do. I beg to move.

8.52 p.m.

Lord McCLUSKEY

The noble Lord has correctly divined that we are in sympathy with what has motivated him to move this Amendment. Indeed, if he looks at the Scotland and Wales Bill, in Clause 26(4), the noble Lord will find that there was a provision that: The standing orders shall include provision for drawing the attention of the Assembly or of any committee of the Assembly considering a Bill to any provision or proposed amendment of the Bill which in the opinion of the presiding officer of the Assembly or chairman of the committee would prevent the Bill from being within the legislative competence of the Assembly".

Lord DRUMALBYN

Yes, I am aware of that, but I prefer the procedure of disallowing it, in the same way as Mr. Speaker does, because "drawing attention" would not necessarily prevent discussion.

Lord McCLUSKEY

So far we are together in agreeing that some such provision would make sense, but I should like to point out what I conceive to be the real difficulties if one accepts such a scheme as is envisaged by the noble Lord, Lord Drumalbyn, who considers that there ought to be some machinery for stopping discussion where the matter is, in the opinion of the presiding officer, going beyond the competence of the Assembly. As I see it, the difficulty about that scheme is that one cannot make a straight comparison between the role of Mr. Speaker in another place and the matter of vires here. These are quite different matters. Indeed, the matter of vires could be quite a difficult legal question. The presiding officer will not necessarily have a background in law. He will not necessarily have such authoritative advice available to him from clerks as is available to Mr. Speaker in relation to the questions which he has to consider, but certainly I do not think that the law officer would be seen as an adviser to the Assembly.

One has to consider this situation. Under these provisions, the law officer is likely to be a member of the Executive itself. Accordingly, he will be offering his advice to the Secretary. It may well be that the Secretary introduces a Bill, on the advice of the law officer, to the effect that the Bill is intra vires. If the presiding officer and his deputies then look at that same Bill which the law officer has said in his opinion is intra vires and they come to a different opinion and hold that it is ultra vires, they would then stop discussion on the Bill, or upon a particular provision of it. That would put the presiding officer in an impossible position. He would be advising against discussion of a Bill which the law officer had thought was intra vires.

Lord DRUMALBYN

Perhaps it would help if I intervened at this point. There is another difference between this Amendment and what was contained in the Scotland and Wales Bill. I deliberately excluded that Bill. So far as that Bill was concerned, I realised that in introducing a Bill the Secretary would be depending upon the advice of the law officer, whether or not the law officer was a Scottish Secretary. I believe that this point is to be considered. As I understand it, this point relates merely to Amendments. It will be a very useful way of ensuring that Amendments, and possibly Amendments also of private Bills, shall not be discussed if they are ultra vires or, rather, if they would make the Bill ultra vires.

Lord McCLUSKEY

I agree with the noble Lord that the words of his Amendment would include amendments to a Bill which had been introduced, but they would also include any other provision of the Bill, because the wording in the third line of the Amendment is quite general; namely: …to disallow discussion on any provision of a Bill". The difficulty, as I say, is that, given the kind of advice which is available to the Scottish Executive and its Secretaries from the law officer and the kind of advice that may not be available to the presiding officer, it would be very difficult for him to form an opinion which might be adverse to the opinion of the law officer. If, of course, somebody else introduced an Amendment which, in the opinion of the law officer, was ultra vires, then no doubt that would be made clear to the person who introduced the Amendment and would also be made clear to the Assembly, and the Assembly would simply have to act responsibly and in accordance with that advice. But it would be putting too great a burden upon the presiding officer if he were called upon simply to rule out of competence discussion upon a matter which ought ultimately to be resolved by the courts since it might involve difficult legal questions.

The difficulty would be even more compounded when it came to the role of a deputy presiding officer or the chairman of a committee who would be empowered by this Amendment, as I read it, to disallow discussion on vires grounds. But, he, the chairman, is likely to be an active politician in the Assembly. This would put him in a very difficult position, and his judgment on vires—it may be an amateur judgment based on the advice of people other than the law officer—might be attacked as being a political judgment rather than a legal judgment.

I hope that the noble Lord will reconsider his position. If it were possible, one would like to see some provision that would prevent unnecessary discussion on matters which were clearly ultra vires. But given the fact that most of the clauses in the Bill, certainly all of the important ones involving expenditure, would proceed from the Executive itself on the advice of the law officer, one would not think that that kind of problem would arise often enough to justify this kind of provision, with all its attendant difficulties.

Baroness ELLIOT of HARWOOD

Would it be possible for committees of the Assembly to be set up on subjects which are not devolved, such as defence, employment and foreign affairs? Could the Assembly set up committees to discuss these matters? I take it that those committees would have no legislative power, but presumably they could report to the Secretary of State. What is to be the relationship between the committees which the Assembly can set up on devolved subjects, which I understand that it can do under Clause 26, and subjects which are not devolved and are purely United Kingdom subjects, such as defence, employment and foreign affairs?

Lord McCLUSKEY

I think that my noble friend Lord Kirkhill explained in relation to a slightly earlier matter that the Bill did not prevent the setting up of committees which could consider non-devolved matters. The rationale is that the interfaces, to repeat the horrible word that I used earlier, and the overlaps are such that one cannot prevent that, and in any event one would not wish to do so. However, when it comes to exercising functions, powers and duties, that is an entirely different matter. Nevertheless, we cannot stop the Assembly committees from discussing matters which are not devolved.

Baroness ELLIOT of HARWOOD

Does not the noble and learned Lord think that under those circumstances the Assembly would be storing up for itself another series of complications, in so far as the United Kingdom Parliament either would pay no attention to or would overrule any of the proposals made by these committees on subjects in relation to which they had no power since they were not devolved matters? Is that not going to add terribly to the complications, since then they will be in the awkward position of having to say to the Assembly: "Whatever you want is not what we want and therefore we shall pay no attention to what you say"? This is another subject on which, if you allow the Assembly to set up committees on subjects over which they have no jurisdiction, you will be storing up terrible problems, because I imagine they would be extremely irritated if the United Kingdom Parliament paid no attention to what they had recommended.

Lord McCLUSKEY

I hope the noble Lord, Lord Drumalbyn, will allow me to say on his behalf that the Amendment is concerned with the provisions of a Bill and not with the kind of talking shop committee that we spoke about earlier. When it comes to the provisions of a Bill it may well be that the Assembly may decide to remit the subject matter or any provision of a Bill to a committee. That is one thing, but the committee of the Assembly meeting purely for the purposes of discussing matters which are not contained in a Bill, is a different matter altogether.

Lord MACKIE of BENSHIE

I wish the noble and learned Lord would not always speak in such derogatory terms of the "talking shop".

Lord WILSON of LANGSIDE

I wonder whether the noble and learned Lord is right about that? He is much more likely to be right than I, but the Amendment refers to "disallowing discussion on any provision in a Bill by the Assembly or any Committee of the Assembly". If we are going to have committees at large discussing everything from foreign policy to the oranges which were mentioned earlier—which are perhaps connected in some way—would that not be covered by the Amendment, or am I wrong?

Lord McCLUSKEY

I do not know whether I or the noble Lord, Lord Drumalbyn, should answer this, but I am quite certain, as I read the Amendment, that the noble Lord is concerned with the legislative competence of the Assembly and the question as to whether or not a provision might be within or outwith the legislative competence, and he is trying to provide that where a provision in a Bill is not within the legislative competence then somebody at an early stage should have the power and competence to stop the discussion on that matter. I hope the noble Lord will make it plain if I have misrepresented him.

Lord WILSON of LANGSIDE

The noble and learned Lord is of course quite right; but the noble Baroness, Lady Elliot of Harwood, was asking about the position of committees, and it was on the answer given by the noble and learned Lord that I was asking whether he was quite right in what he said.

Earl FERRERS

I think the noble and learned Lord's sympathy is with my noble friend on the Amendment but he finds it difficult to accept the Amendment as it is drafted. I understand the reason why he thinks it might put the presiding officer or his deputy in difficulty on some occasions if this Amendment were accepted; but I think the principle is fairly important, that if a Bill is introduced and if somebody introduces an Amendment to that Bill, the introduction of which would render the whole Bill to be outside the powers which the Assembly is competent to deal with, there should be some provision to stop that Amendment being discussed in the same way as the Speaker does in another place. He says: "This is outside the scope of the Bill and we cannot discuss it". If nothing is put in, the situation would then arise on Bills where Amendments could at least be spoken to, the Bills being within the competence of the Assembly but the Amendments being outside the competence of the Assembly. I hope that the noble and learned Lord will be able to give a little thought to this to see whether it is possible to make an improvement at the next stage.

9.6 p.m.

Lord DRUMALBYN

I am grateful to the noble and learned Lord for what he has said. To some extent it has rather depressed me. I cannot believe that the presiding officer will not be able to recruit staff to advise him in the same way as the Speaker in another place recruits staff to advise him. Of course they will not immediately have the long experience of officers of the House in another place, or indeed officers of your Lordships' House, although I would not think it impossible that some worthy Scots from one staff or the other might be appointed in a similar capacity to the staff of the presiding officer in the Assembly. This would be vitally necessary for the proper working of the Assembly. I hope that at any rate that difficulty can be overcome.

Then the noble and learned Lord said that the chairman of the committee might not have the necessary experience; but certainly my experience in another place was that the chairmen of committees were well and truly advised by a clerk sitting literally at their elbow who knew the subject backwards and could tell the chairman at once whether or not to select a particular Amendment on account of its being ultra vires. I cannot help thinking that the same procedure ought to be available in the Assembly. So to that extent I shall look at the Amendment again, but I hope that we may be able to reach some kind of solution to this which will ultimately be acceptable to the Government.

I really do not think that this matter comes very much into the political arena. If one comes to an Amendment and somebody in another place—to put it in common parlance— "argues the toss", they do not get very far; they are simply told that the Amendment is not selected, and that is that. No reason is given. What were the phrases that were used —the "fractious Scots". The fractious Scots are not going to be all that fractious; I think they would accept the chairman's ruling, just as they do the referee's decision, even though it is rather disagreeable.

The Earl of CROMARTIE

I wonder whether, as a very old convenor from the Highlands, I might come in on this. The Assembly, or whatever you are going to call it, is going to be a democratic institution and there is no reason whatever why the Members should not talk about exactly what they like—I do not care what the subject is—provided they do not go on too long. Somebody presumably will be in a position to say: "We have discussed this long enough, and that is the end". It is as simple as that.

Lord DRUMALBYN

In that case perhaps we could call the Assembly a ceilidh. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 27 [Financial initiative]:

9.9 p.m.

Earl FERRERS moved Amendment No. 118: Page 12, line 26, leave out from beginning to ("where") in line 27.

The noble Earl said: This is a perfectly simple Amendment. Clause 27 says: Standing orders … shall include provision for securing that, where a Scottish Assembly Bill proposes to authorise any expenditure to he met from … the Scottish Consolidated Fund it shall first have the authorisation of the Scottish Secretary. No Bill which is going to cost money can start in another place unless the Government have first of all approved the expenditure, and my Amendment really says that exactly the same should apply in the Assembly: that before a Bill which is going to involve expenditure from the Scottish Consolidated Fund is presented it should have the approval of the Executive. It should not, I would suggest, be part of standing orders; it should just be a fact. I cannot see why it should be put in this clause as part of the standing orders. My Amendment suggests leaving out the words making it mandatory that standing orders should include this provision. I beg to move.

Lord McCLUSKEY

I am sure the Committee is becoming familiar with this particular argument as to whether a provision should be in the Bill or in the standing orders. Our view is that the procedure for recommending a Bill imposing a new charge forms part of the ordinary legislative process of the Assembly. The Government believe that it should, like other parts of that process, be left to be determined by standing orders of the Assembly, just as the corresponding procedure at Westminster is dealt with in the standing orders of the other place, where expenditure provisions in a Bill must be founded on a Money Resolution made with the Queen's recommendation.

To attempt to lay down in the Bill itself a direct procedural requirement determining this single part of the legislative process would seem to us to make little sense. The Bill leaves it to the Assembly to relate this part to the rest of its legislative procedure. I do not think I can usefully add to that. It is the old argument as to whether we must tack the whole thing down in the Bill or whether we can say to the Assembly: "You are a responsible legislative body. Here is a model which you may choose to follow; this is the way to do it, put it in your standing orders". I do not think this Amendment raises any different point of principle. I would ask the noble Earl to reconsider it.

Lord MACKIE of BENSHIE

The noble Earl must be happy with this clause because it uses his favourite word "shall "instead of "may".

Earl FERRERS

Is it not a funny thing that one minute we are trying to persuade the Government to put something in the standing orders and the next minute we are trying to persuade them that what is in the standing orders should not be there at all? We have no difference with the principle as drafted at the moment, that the Scottish Secretary should give approval. The only consideration I had in mind was that it ought to be a fact of life and should not be part of standing orders. But if the noble and learned Lord persuades me that it is the right place for it, I am quite happy to accede to his suggestion. I will not press the Amendment, and I have no doubt the noble and learned Lord will not forget that, when I ask him at a later date to reconsider and agree with my suggestion. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.13 p.m.

Earl FERRERS moved Amendment No. 119: Page 12, line 31, leave out ("cannot") and insert ("shall not"). The noble Earl said: I fancy that I spoke a little too quickly. I have the happy thought that the noble and learned Lord will accept this Amendment because it is almost grammar. What the clause says at the moment is: … where a Scottish Assembly Bill proposes to authorise any expenditure…the Bill cannot pass unless the authorisation has been recommended by a Scottish Secretary". Of course, a Bill can pass if it is voted on. I think what the Government are trying to say is that it shall not pass without approval of the Scottish Secretary. This, as I say, is almost a matter of semantics, and I am sure the noble and learned Lord will agree that this is an appropriate amendment to the Bill. I beg to move.

Lord McCLUSKEY

If I can draw a distinction between semantics and grammar I shall do so, but on another occasion. On this occasion I shall simply say that I am convinced that this is worth looking at. I do not think it is a matter of great importance but I shall look at it.

Earl FERRERS

I am bound to say that when the noble and learned Lord says he is going to have a look at it I wonder what he was doing when he was preparing himself for the Bill. I am delighted to know that he will look at it. I do not think he need look too long. If he says yes I shall be quite happy but I am grateful to the noble and learned Lord for his courtesy. I beg leave—

Lord McCLUSKEY

Before this is withdrawn the noble Earl should realise that, if I start fiddling around with someone else's grammar, I shall have to face the wrath of the Parliamentary draftsmen.

Earl FERRERS

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

Earl FERRERS moved Amendment No. 120: Page 12, line 32, leave out ("a Scottish Secretary") and insert ("the Secretary of State").

The noble Earl said: This is slightly different, and I am not sure that it will have quite the approval of the noble and learned Lord that the other one has. I shall hope to persuade him that it may be a good idea if he considers it. There is to be a block budget produced every four years by which the Westminster Parliament will allocate money to the Scottish Consolidated Fund. The problem here is that, if the Scottish Assembly proposes a Bill such as one relating to the National Health Service or one to set up a new Housing Corporation which will propose to build a number of houses over the next 20 years, there is going to be increasing expenditure both as to capital and as to running expenses.

I visualise a situation in which, if a Bill of this nature is produced, the Scottish Secretary will come to Westminster and say, "Your block budget is not big enough. We have passed a Bill and we are going to build X houses every year for the next 20 years". As the years go by, so the houses will become more expensive and the running costs will also become more expensive. The Scottish Secretary will go to the Secretary of State and say, "We thought five years ago that the cost was going to he such and such; now it is twice as much, therefore you, Westminster, must provide more money".

In the same way, the Scottish Assembly quite rightly, has power to build a hospital which may cost £1 million a year to run. The Scottish Assembly produces a Bill, builds the hospital and in five years' time it is discovered that the cost is not £1 million a year but £5 million. Many of these Bills which involve expenditure are going to involve capital expenditure and an increasing running expenditure, the effect of which is going to devolve upon the United Kingdom Parliament because they are the ones who are going to have to provide the block grant. I should have thought that it was only reasonable that the Secretary of State should have a say, or at least he consulted, before approval is given to the introduction of one of these Bills. In the end it is going to be the Secretary of State who is responsible for providing the funds. I would hope that that thought might meet with the approval of the noble and learned Lord. I beg to move.

Lord McCLUSKEY

This Amendment is directly contrary to all that we hope will happen to the Scottish Assembly. The whole idea of the block grant is that it will be based on an assessment of the present and future position of Scotland in relation to the rest of the United Kingdom—an assessment which will obviously be indexed with regard to inflation. If you try to transfer responsibility for authorisation of a Bill to the Secretary of State, you take away the essential independence of the Scottish Secretaries, who we hope will be acting in the knowledge that they have to live within this block grant, which must take into account the sort of rises in cost about which the noble Earl was talking. I think the Amendment runs contrary to all that he has been saying and that critics have said about the fact that there are no taxation powers. The Scottish Secretary must have a sense of responsibility. If the Assembly passes this authorisation on to the Secretary of State and therefore on to Parliament and the Exchequer here, that sense of responsibility will be lacking.

Lord DRUMALBYN

This is one of the rare occasions when I disagree with my noble friend, partly because one is so very familiar with the procedure in the House of Commons, where every Bill has a financial resolution and there must be a Treasury Minister there to assent to it, to nod, or to move it. The noble Lord, Lord Winterbottom, will remember that very well, too. Just as a matter of pure procedure, this is a constant reminder to Parliament, to the House of Commons, as it would be to the Assembly, that there is the need for the funds available to be safeguarded. Every provision involving public expenditure has to be sanctioned by the Treasury in the case of Parliament, and by a Scottish Secretary who has obtained authorisation for the release of the amount from the Scottish Consolidated Fund. I feel that this proposal would not be an improvement, since there would be nobody in the Assembly to represent the Secretary of State.

This is one of the useful formalities, and is a constant reminder in Parliament of the rather lavish expenditure, which is all too common these days, perhaps, and of the need for Treasury control. I suppose that one of the Scottish Secretaries will be responsible for this, or each Scottish Secretary may be able to authorise it on behalf of the Scottish Executive. I do not know how it would work, but I think it is a good discipline which should be retained.

Lord MACKIE of BENSHIE

Would the noble Lord not agree that if the Scottish Secretary, as distinct from the Secretary of State, gets the go-ahead from the Secretary of State, and then Westminster, he will be able to blame him for any increase in cost?

Lord DRUMALBYN

I am not certain that I see the sequence. He might try to do so, but I do not think that he would be able to do so.

9.23 p.m.

Lord McCLUSKEY

The answers that I would offer have been encapsulated in the last two speeches. However, it is perhaps right that I should state briefly the Government's precise position. First, the noble Earl said that this was a slightly different Amendment. That was a breathtakingly immoderate statement of the position. It is totally different. This is one of a whole series of provisions which would attempt to emasculate the Assembly. After all, the direct interest in the matters at issue here lies with the Scottish Administration and the Assembly. It is the arrangements for the control of devolved public expenditure which are concerned. It is the Scottish Administration, and not the Secretary of State, who will be responsible for determining priorities within the total resources made available to them.

To make the Secretary of State responsible, as would the Amendment, for deciding on the admissibility of new forms of devolved expenditure, would place him in an impossible position. It would be wholly alien, as the two noble Lords who have spoken have suggested, to the whole concept of devolution contained in this Bill. Indeed, I can put it as strongly as this. In a real sense this would wreck the scheme of devolution in the Bill. The noble Earl, in speaking to it, sought to defend it on the grounds that, as new expenditure would fall on the block fund, the need for a Scottish Secretary's consent may not be an effective constraint, and that the recommendation of the Secretary of State, who takes responsibility ultimately with Parliament for the size of the block fund, is more appropriate. However, an argument of that kind ignores the fact that, while the Assembly legislation may force the Scottish Administration to reorder its expenditure priorities, it cannot oblige the House of Commons to approve an increased total.

In my submission, to transfer responsibility to the Secretary of State in the way that this Amendment envisages—that is to say, the responsibility for recommending Assembly legislation—would breach a fundamental principle that devolved spending priorities are for the Scottish administration to decide. It would also breach the principle that the Government at Westminster should take no part in the ordinary legislative processes of the Assembly in relation to devolved matters. It is only after a Bill has been passed by the Assembly that it falls to the Secretary of State to consider whether it should be submitted for approval by Her Majesty in Council. It would distort the whole character of the relationship between central and devolved Administrations if the Secretary of State could prevent the Assembly from completing proceedings on a Bill which it wished to pass.

I know that the noble Earl admires frankness second only to weakness, and therefore I shall be perfectly frank with him and say that we do not intend to accept this Amendment at this or any other stage.

Earl FERRERS

I am bound to say that I have a certain feeling of kinship with the noble and learned Lord, Lord McCluskey, because for the first time I have discovered what it is like to put forward and support a point of view and then find that I am the only person in the Chamber carrying that point of view. That is a situation in which the noble and learned Lord, I am sure, must have found himself from time to time.

However, I do not put this Amendment forward with any degree of shame because the noble and learned Lord has said that it would emasculate the Assembly. Of course it was not at all my idea to emasculate the Assembly. He said that the Scottish Secretary should be responsible for dealing with these devolved matters. That is absolutely so. The reason for putting the Amendment down is, as I see it—I may be wrong, and if the noble and learned Lord could explain where I am wrong I should be grateful—that the Scottish Secretary can come forward with proposals which will have a commitment to run for say, 10 or 20 years. The running expenditure will, because of inflation and a number of other matters, increase over those 10 or 20 years, and yet the end result is that the United Kingdom Parliament is responsible for providing the money. I should have thought that the United Kingdom Parliament, therefore, ought, at some stage, to be told in advance of the total of their commitment or the fact of their commitment, otherwise it seems that the Scottish Executive can invite the United Kingdom Government to accept a blank cheque. If it wants to build, for instance, a hospital which has running costs of £1 million, in 10 years' time the running costs may be £10 million. Where will the money come from? It can only come from Westminster. We come back to the whole nub of the weakness of the Bill, that if there are no tax-raising powers at all for the Assembly it all bumps back on to Westminster.

At this stage of the Assembly Bills, which we are considering now, Westminster will not be involved at all. Therefore, it has to accept the fact of the results of these Bills, with all the implications of expenditure, and yet not know anything about them and have no say as to whether Westminster could accept such a charge. I may be completely wrong about that, and if I am I shall be grateful if the noble and learned Lord would explain how this would work.

Lord MACKIE of BENSHIE

Perhaps I may be permitted to help?

Earl FERRERS

I should be grateful if the noble Lord would help.

Lord MACKIE of BENSHIE

The whole idea is that the indexed formula will apply. If the Scottish Assembly erects a hospital the costs of which rise from £1 million to £20 million—quite outside the formula—then it will have to bear it or close it down and face the wrath of the electors of that district. The Treasury will commit itself to a formula for a block grant and the formula will obviously include things like inflation. However, if the Scottish Assembly builds a hospital the costs of which rise far and away above the formula, then that is its responsibility. It will not get any more money. It will simply have to close it down or cut the cost. So the Treasury, having fixed the formula, knows exactly what its commitment is, and it does not have to provide more money for mismanagement by the Scottish Assembly.

Earl FERRERS

With respect to the noble Lord, that is all right as a capital expenditure. But, when one has built one's hospital which was to cost £1 million per year to run and one finds at the end of 10 years that it is not costing £1 million but £10 million, that may not be due to mismanagement but to inflation and many other factors. If that is repeated many times across the spectrum, we can well see a situation developing with the United Kingdom being obliged to provide large sums of money over which it has no control from the outset.

Lord MACKIE of BENSHIE

I must apologise to the noble Earl. I did not realise that the noble Lord did not understand that indexation refers to inflation. It means that the inflation factor is built into the index so that inflation would apply to running costs much more than to capital costs, which would prevail the first year. However, as I understand it, it would all come out of the block grant.

Lord DRUMALBYN

I should like to make a point. The whole reason for getting the consent of whoever is responsible in the Exchequer for the Consolidated Fund for a Bill is that, generally speaking, Bills create continuing expenditure from year to year. I believe that the point made by the noble Lord, Lord Mackie of Benshie, is valid. After one has had that estimate of continuing expenditure approved, which is done by a Financial Resolution, indexation will run. If there is gross mismanagement and the cost of running that particular service, whatever it may be, is far more than the cost of running similar services in other parts of the country, it will be for the Assembly itself—in particular the Executive— to put matters right.

Earl FERRERS

The Lib-Lab pact did very well and I am grateful to the noble Lord, Lord Mackie of Benshie, for explaining what the Government intend should be done in the Bill. I only hope that the noble Lord has it right. However, I am not quite so grateful to him for his slightly disarming remarks about indexation, of which I have some idea but only, of course, at the kindergarten level—the noble Lord is at a much higher level than that.

Lord McCLUSKEY

Before the noble Earl withdraws his Amendment I should make it plain that, quite apart from the Lib-Lab pact, I entirely agree with the noble Lord, Lord Drumalbyn. It was because I felt that I could not assist the Committee further that I did not rise to my feet again.

Earl FERRERS

I would see that as a Conservative-Labour pact as well, in which I seem to be the odd man out. Therefore, I think that, on the whole. I had better withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

9.33 p.m.

Lord DRUMALBYN moved Amendment No. 351: After Clause 27, insert the followine new clause

Motions

". Standing orders of the Assembly shall include provision for the discussion only of matters directly affecting Scotland.".

The noble Lord said: I am afraid that we are rather back at the Outspan orange again. The fact is, of course, that there is no specific provision in the Bill for the discussion of Motions. Motions are a very important part of the proceedings of any Assembly because they enable the Assembly to express its own views, to move for matters to be put right that individual Members consider wrong, to recruit support for these matters, to press them on the Government and so forth. There is no provision for that.

Presumably, it is intended that the Assembly will not merely legislate and divide itself into committees. It may not be thought that it is even necessary to make any reference to Motions in a Bill of this kind, but I should have thought that it is reasonable to do so, if only to put some kind of restriction on what can be discussed in the Assembly. T would agree with my noble friend Lord Ferrers that the time of the Assembly is money and it is a matter of money, too, if you spend a lot of time discussing matters that are of no relevance whatever.

I should not have thought that it was in any way an impertinence to the Assembly to define the matters that they should discuss. I think it was Solomon who said that, the eyes of a fool are in the ends of the earth". It would be much better for the Assembly to discuss the matters that really concern Scotland, because that is what they are put up for. I do not mean matters that concern only Scotland. This is why the Amendment says: Standing orders of the Assembly shall include provision for the discussion only of matters directly affecting Scotland.". This seems to me a sensible provision. I do not think it would be at all appropriate that the Assembly should discuss international affairs. There are aspects of defence, no doubt, directly affecting Scotland that they will wish to discuss. One sometimes wonders whether these matters directly affecting Scotland on the defence side may not become a good deal more acute in the future. But it is important that there should be provision for Motions, and there should be provision equally for a limitation on the width of the Motions that can be discussed. I beg to move.

Lord KIRKHILL

As the noble Lord, Lord Drumalbyn, has said, this again comes back to a principle which we have talked about in earlier debates. I do not know whether I can say much more than I said then. There does not seem to be any good principle on the basis of which the Assembly may not discuss that which it chooses. I might inject the thought that, if we are too constrictive, I am sure that Members of the Assembly can quite easily get round any formula we might devise. One has only to think of the other place and perhaps Prime Minister's Question Time, and the usual Question, "When is the Prime Minister going to visit (I will say) Aberdeen?", my home town. This enables the Member to get up and ask him almost anything he wants. It is on the grounds that we want to give the Assembly as great a freedom as is possible—and I accept that it is a question of where one draws the line—that the Government would like to resist the Amendment.

Lord WILSON of LANGSIDE

I am a little hesitant to rise because I have not clarified my own mind about this. I am a little uneasy about this conception that committees of the Assembly should be free to discuss non-devolved matters at large. Is it suggested, for example, that they should be able to discuss matters of foreign policy? Some might say, why not? Well, would it be conducive to good government if they were to express themselves strongly—and I can think of many people in Scotland who might be Members of this Assembly who might express themselves strongly—in conflict with many aspects of the Westminster Government's foreign policy? Is it the Government's conception that the Assembly should be free to set up committees at large to discuss such issues? Is it thought that that would be fruitful, helpful, and conducive to better Government in these various fields?

One thinks also in relation to defence and the organisation of the Armed Services —matters relating to Scottish regiments, and so on. One might say—I am sure many of your Lordships would say—why should the Assembly not set up committees to discuss these matters? Why not indeed? Why should we not talk about anything we want to talk about? But is it really thought that this would be conducive to better Government in relation to these various matters in the United Kingdom, and that it would promote better government in these areas that this Assembly should be free to set up committees in any area at all?

9.40 p.m.

The Earl of MANSFIELD

I do not altogether agree with the noble and learned Lord, but there is a point to be considered here. When I was in the European Parliament we spent many agreeable hours discussing horrors in Spain and civil rights in Peru and other places on the South American Continent, and there was no doubt that that provided a way of passing the time, whereas the European Parliament at the moment finds it difficult to pass the time. I suggest the Government retain some sort of responsibility over what we are discussing. Do they see, for instance, the Scottish Assembly having these wide-ranging debates, what I might call Wednesday debates-plus? Is that to be part of the function of the Assembly? Will pressure groups within the Assembly be able to use the Assembly as a sounding board to initiate debates which are not properly within devolved matters but which they may use to put forward their points of view? Will minorities be able to use the Assembly and—I hesitate to ask this—will extreme points of view be adduced by Parties in the Assembly to push forward their points of view?

Whether it is desirable, let alone possible, to legislate for this, I doubt; I take note of what the noble Lord, Lord Kirkhill, said in that whatever the standing orders or this House may say, I am inclined to think that if the Assembly wants to have rather airy-fairy debates with little point at the end of them, it will have them. When the Government look at the strategic part of the Assembly's role, I wonder whether they will encourage this.

Lord WILSON of LANGSIDE

Does the Minister think it would be a good idea for the Assembly to express a view about the Polaris base in the Holy Loch?

Lord KIRKHILL

I do not think I can say the Government can at this stage express a view as to what might be, in terms of a Scottish Assembly debate, conducive to good government if one takes it on a United Kingdom basis. What I have been saying is that Clause 26 is permissive; the Assembly is not debarred from discussing that which it wishes to discuss. The noble and learned Lord, Lord Wilson of Langiside, asked whether a specific question of defence or some aspect of foreign policy on a United Kingdom basis could be discussed. As I read the Bill, such a discussion is not debarred to the Assemblymen if somebody chooses to raise the issue and there is a majority view that the matter be discussed.

On the various points raised by the noble Earl, Lord Mansfield, I can only say that in each case the Government have no view on those points, but the Assembly might certainly discuss those where, for example, as he suggested, a pressure group within the Assembly were to emerge. Of course, as to the political control of the Assembly, in my experience —this is at another level, that of local government—political control tends to squeeze the pressure groups, and I do not think I can go beyond that.

9.44 p.m.

Lord WILSON of LANGSIDE

I must press the Minister on this. The whole conception of the Bill is that government in Scotland will be better. There are two purposes to the Bill, it is claimed; one is to improve government in Scotand and the other is to take the steam out of the Nationalist pressure. How is this sort of thing going to promote either of those? For example, if we are to have a committee on the defence of the Realm to express itself at large and get itself publicised widely in the newspapers and on television, to whom will such a defence committee report and to whom will it be answerable?

What is the position? Will there be a plethora of committees in Edinburgh, in the Royal High School, sitting under the Calton Hill, expressing themselves about everything under the sun, and telling the Westminster Government how they should conduct their foreign policy and their defence policy? Will this really promote the better government of the United Kingdom? Perhaps the noble Lord will tell us to whom these committees will report`? I have in mind in particular this defence committee, which he apparently accepts with his customary, charming aplomb; he does not get excited, as I am sorry to say I sometimes do, at the thought of this kind of thing. T o whom will these committees report? To whom will they be answerable? Will they be answerable to anyone, or will they just be the sounding board for many people in the Scottish Assembly who will have "hobby-horses"?—and I can think of many who will have "hobby-horses", if, by some misfortune, this Bill is ever passed into law.

Lord KIRKHILL

I should like to respond to that specific point. I said earlier this evening that there is nothing in the Bill to prevent the Assembly, if so minded, from setting up a committee to discuss that which the Assembly determines should be discussed. If noble Lords wish to extend that and isolate particular aspects which the Assembly might wish to discuss, so be it. I cannot comment on that. All I can say is that the Bill does not debar the Assembly from so doing, nor does the Bill debar, for instance, the Assembly in plenary session discussing anything it wishes to discuss. I cannot foretell what kind of committees, with what kind of remits the Assembly will set up. But if the Assembly sets up a committee on something which is not a devolved matter, the Assembly cannot legislate upon that issue, but the Assembly can discuss the matter. That is what I was saying.

Lord DRUMALBYN

. May I intervene for a second? Are we not getting rather far away from the subject, which is motions, not committees?

The Earl of PERTH

I want to make exactly the same point. As I understand it, we are now discussing Clause 27, not Clause 26—

A noble Lord: No, it is the new clause, after Clause 27.

Lord KIRKHILL

Certainly we have gone off the point somewhat, but, as we keep saying, the Scots tend to be somewhat contentious from time to time.

Lord WILSON of LANGSIDE

. I wonder whether we have gone off the point. The Amendment says that: Standing orders of the Assembly shall include provision for the discussion only of matters directly affecting Scotland. I should have thought that many people would regard the existence of the Polaris base on the Holy Loch as a matter directly affecting Scotland. With due respect to the noble Lord, Lord Drumalbyn, and the noble Earl, Lord Perth, both of whom are much more conversant with the proceedings of this Chamber than am I, I should have thought that this was a relevant point.

Lord KIRKHILL

I am a Minister at the present time in the Scottish Office, which spans in Scottish terms quite a number of the United Kingdom Departments of State. I should be surprised if the Scottish Assembly has time, after properly scrutinising that which stands devolved before it, to be involved in a proliferation of committees, as has been suggested.

Earl FERRERS

Is there not something slightly ironical here? The Scottish Assembly can, apparently, set up committees and discuss the Polaris submarines. According to my noble friend Lord Selkirk—if he was right in what he said on Second Reading—the Scottish committees may discuss that matter, but the Scottish Assembly cannot complain about smoke emitted from the Royal Navy, though the local authorities can. I should have thought that if that was the situation, it ought at least to be able to discuss the Polaris submarine.

The Earl of LAUDERDALE

It is not beyond the resource of any Parliamentarian to stretch the rules of order so that anything he wants to discuss can be discussed. I remember once, in the Scottish Grand Committee in another place, having a bet with somebody as to whether I could bring a debate on Scottish health round to Suez, and I managed it quite all right. On another occasion I managed to bring in Lancashire on the grounds that everything North of the Mersey should belong to Scotland, anyway. It is not at all difficult for an enterprising Parliamentarian to widen the scope of debate. Those of us who have been schooled (if that is the word) or educated, or brainwashed by the rich irrelevancy of the correspondence columns of the Scotsman, let alone, with respect, of the Church and Nation Committee of the General Assembly, will be aware that Scotsmen find matters relating to Scotland in the most recondite and remote subjects; and nothing that we do, nothing that Parliament does, nothing that an Act of Parliament does, will ever stop the Scots talking their heads off if they want to. Therefore, I would suggest that this Amendment by my noble friend Lord Drumalbyn, well intentioned as it is, is really ineffective. It will not get anything done; and I am happy to say, just to show that I am so impartial and unbiased, that on this matter I support the noble Lord, Lord Kirkhill

Baroness ELLIOT of HARWOOD

I have listened to this debate with con siderable interest, and it depresses me; because if in fact we are to settle what is going to be an exceedingly expensive form of government, additional to all the other forms of government and all the other innumerable people who are involved in Scottish government, we hope we shall have something which is going to concentrate on Scotland and that this Assembly is not going to spend a lot of its time discussing a whole lot of matters for which its Members have no responsibility as Assemblymen. They have a responsibility as voters to the United Kingdom Parliament, of course; but that is another matter. Everyone who has a vote has a responsibility for everythng which affects the United Kingdom, and most of those matters are still going to be dealt with by the Westminster Parliament. But if we are going to set up this Assembly, then unless it is prepared to do most of its work (in fact, I should like to think all of its work) in the interests of the area for which it has responsibility—that is, the devolved matters—we are simply paying a lot of people to do a lot of talking, which we in Scotland love doing, as we all know, and arguing, which we like better than anything, and all that will have nothing to do with what is in fact under their jurisdiction.

I would have thought that the Government would be delighted to find something which would at least concentrate the Members of the Assembly on the job that they ought to be doing, because if they do not do their job then there is absolutely no reason for having them at all. They can talk their heads off in another place in Westminster, the whole thing will be reported on the radio and they will have a lovely time. Let them do that; but if they are going to be of any use on affairs which are purely Scottish, which is what the Assembly is supposed to be for, then for heaven's sake let us try to do something which will make them concentrate on the job they are supposed to be doing, and not just have a jolly time, as my noble friend Lord Mansfield said he had in the European Parliament talking about all sorts of things in which they had, apparently, nothing but an intellectual interest. I am not interested in producing an Assembly which has an intellectual interest in a number of things but does not do the job for which it was elected. I think the Government are making a big mistake if they do not do something to restrict what the Assembly does.

Lord KIRKHILL

May I just say this? The Assembly will he under the close political scrutiny of the rather concentrated Scottish media, and I would imagine that the Assembly will concentrate very clearly on devolved matters.

Lord WILSON of LANGSIDE

I wonder whether I may pursue this matter. I think the noble Baroness, Lady Elliot of Harwood, was absolutely right in what she said. I am not so naive, perhaps, as I at times look, as I think the noble Earl, Lord Lauderdale, seemed to suggest. I quite appreciate the idiosyncrasies of politicians and Parliamentarians, and the fact that you cannot stop them talking, if they are determined to do so, about anything at all. What I am questioning is the common sense of the Government in encouraging an Assembly such as they are suggesting we should have—heaven protect us from it, but they are suggesting we should have it—to express itself in those areas to which I and other noble Lords have referred and to delude itself into thinking that this will contribute to the better government of the United Kingdom. That is what I am suggesting. Of course we cannot stop people talking here or in the other place about these various things. They are there; but what the Government are doing is to set up this body and encourage it to do it. That is my point.

9.55 p.m.

The Marquess of LINLITHGOW

I support the noble and learned Lord, Lord Wilson of Langside. We have to face the fact that a number of people will be elected to the Assembly—they may not be a majority—who are going to try to persuade the rest of Scotland that they have only a half or a quarter of the powers they want. They are going to try to get a reputation for being able to debate and to make announcements upon undevolved subjects such as foreign policy. You cannot stop them from doing that. They will fill drill halls and places all over Scotland and form committees of protests; but what I think this Amendment is trying to do—and I hope to he corrected if I am wrong—is at least to say that the discussions promoted on undevolved subjects should not have upon them the stamp of the new Legislature, the Convention or the Assembly, call it what you like.

I have another point to make. If this Amendment falls and the Assembly committees are to be open to discuss anything officially as committees of the Assembly and be written up in the papers as such, then—although not on this Amendment but on an earlier one; the first one that we had, I think—as the General Assembly of the Church of Scotland can and does pronounce on every possible subject one can think of. it will make it all the more important, if the Assembly is to do the same thing, that the two Assemblies should not get muddled and, therefore, that the Assembly should have a separate name.

May I repeat that I think that what this Amendment is trying to suggest—and I hope it is, for that is why I support it—is that the discussions of undevolved subjects by the official committees should not have the official stamp of the new Assembly.

Lord DRUMALBYN

I agree straight away that it is possible to bring almost any matter into any discussion, as, indeed, this discussion has shown. That is not exactly what this Amendment is about. Surely, we can get into our minds the purpose of Parliaments and Assemblies! We all know there is the legislative side. The standing orders are almost all about the legislative side. The whole thing has become unbalanced. Nothing is said about the deliberative side and that is immensely important; for not only does it tend to the formation of opinion, but it influences the Government, whatever it may be, or the Executive, in what it does and in the decisions it makes. Debate can he critical of the Government in its Executive capacity, and so forth.

The Motions are tremendously important. To leave them out of a Bill like this seems incomprehensible. If we are to have standing orders, surely this should be mentioned. As I have said, they have their place. Mention of them should have its place in the Bill itself and, at the same time, the subjects of the Motions should be confined to what my noble friend Lady Elliot has suggested—the good government and the benefit of Scotland, and matters affecting Scotland.

Surely this is not an unreasonable proposition. 'agree that one can putdown a Motion and the standing orders can, in turn, limit the subjects that can be put down for discussion to matters affecting Scotland. That is a sound limitation. If the Speaker is not able to keep those who are there to the point, that is a different matter. I should have thought that, even in Scotland, when matters affecting Scotland are being debated it should not be too difficult to keep the de bate on the subject for the benefit of Scotland.

This is what the Amendment is about. I hope the noble Lord will think about it again. We must get a proper balance in the Bill. We must help the Assembly to produce standing orders that will make the Assembly work well and itself be for the benefit of Scotland. This is all I am asking. I hope that between now and the next stage the matter can he further considered. I beg leave to withdraw the Amendent.

Amendment, by leave, withdrawn.

10 p.m.

Lord DRUMALBYN moved Amendment No. 352: After Clause 27, insert the following new clause:

Questions

(" . Standing orders of the Assembly shall include provision for members to question the Scottish Secretaries on matters within their competence.").

The noble Lord said: I apologise to the Committee for pursuing matters further. It is a little more doubtful whether there should be a standing order in relation to questions. This is really to complete the cycle as being a good means of keeping the Scottish Executive on their toes. I should have thought that it was not a bad idea to put in a reference to the power of the electorate to question the Executive through the elected Members. This is what questions are all about—certainly in the House of Commons. Therefore I do not think that there is anything more that I can say about this. You either like it or you do not like it. I beg to move.

Lord McCLUSKEY

It will not surprise the Committee if I say that the Government's attitude in relation to this Amendment is very much the same as in relation to the earlier point. The noble Lord said he was a little more doubtful about the need for this. If one writes provisions of this kind into the Bill, it will double in length—certainly in this regard—and the Assembly will be left with nothing to decide for itself. No doubt the Assembly will want to make provision for questions to be asked and answered. Surely it is a matter for the Assembly to decide exactly the form in which it will make provision for that. I should have thought the Assembly would certainly introduce such a question and, even more clearly, the decision as to how it should be done will be left to the Assembly. I cannot add to the matter; it is the same general principle that we have been discussing.

Lord DRUMALBYN

I do not propose to press this Amendment. I cannot agree with the noble and learned Lord's mathematics. There are five lines here to add to the Bill; I am sorry that he said it was doubling the Bill's length.

Lord McCLUSKEY

My arithmetic is better tonight than it was on the previous occasion when I was corrected by the noble Lord, Lord Lyell. I was talking about many thousands at that time. If one looks at the Amendments which the noble Lord, Lord Drumalbyn, added on Friday evening, they extend to three typed pages. They amount to 13 Amendments, and are taking about two hours of debate. When I talked about doubling the Bill in length, these provisions, if they are all to be included, as the noble Lord suggested, would certainly double the Bill so far as it deals with this kind of matter.

Lord DRUMALBYN

The noble and learned Lord has found some quick explanation of this astonishing statement. I suppose at this stage I had better withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 28 [Members of Assembly acting as additional Commissioners]:

10.4 p.m.

The Earl of SELKIRK moved Amendment No. 251: Page 13, line 6, leave out ("Chairmen") and insert ("President of the Assembly").

The noble Earl said: When I put down this Amendment there was one word "Chairman", that I was unable to understand. Since then 1 see the word has been altered to "Chairmen". I still do not think that its meaning is clear. I move this Amendment not merely to press this but to ask the noble and learned Lord whether he would put in the interpretation clause what the word "Chairmen "is meant to mean. I am given to understand that it means the Lord Chairman of this House and the Chairman of the Ways and Means Committee in the other place. I am perfectly happy with that interpretation. If the noble and learned Lord will explain it for the benefit of those who have the arduous duty of reading this Bill, it will be a great advancement in clarity.

If I may mention just one other point which I think is moderately within reason here, what about hybrid Bills? There is no reference whatever in this Bill as to how hybrid Bills are to be dealt with. This is a Bill dealing, under Clause 28, purely with private legislation and I think there should be some provision for hybrid Bills. I do not suppose that the noble and learned Lord would care to reply in detail on that this evening but, with respect, may I suggest that he should consider it before the next stage of the Bill. Hybrid Bills are important and they require some consideration. However, all I am asking the noble and learned Lord to do at the moment is to agree that the word "Chairmen" should be in the interpretation clause. I beg to move.

Lord McCLUSKEY

First of all, in relation to the word "Chairman". which appears at line 6, page 13, that was a printing error and I think a correction slip was put in at one stage indicating that the word ought to be "Chairmen". Secondly, what the clause envisages is that when Commissioners arc being selected under the Private Legislation Procedure (Scotland) Act 1936, then the panel of members may include Commissioners or possible Commissioners who are from the Assembly rather than from either House of this Parliament. We do not think it is necessary to define "Chairmen" because in the context of this clause it is plain that the Chairmen referred to are those who appear in the appropriate section of the 1936 Act, mentioned at the end of subsection (1) of Clause 28. I am sure that the noble Earl has looked at the 1936 Act before moving this Amendment. He will see that the Chairmen referred to there are indeed, as he mentioned, the Chairman of Ways and Means and the Chairman of Committees in this House. That is what is meant by "Chairmen", and we would not have thought it was necessary to spell out any definition, because the term is taken from the Private Legislation Procedure (Scotland) Act 1936.

In relation to hybrid Bills, I presume the noble Earl is talking about a hybrid Bill in the ordinary sense and not in the sense of involving both devolved and non-devolved matters. Then in the ordinary sense I think it is unnecessary for the Bill to say anything about it, because all this clause does is to make it competent for Members of the Assembly to be on the panel from which the two Chairmen may select Commissioners; that is all. The rest of the private legislation is left where it is at the present time, although of course it is possible in the future for the Assembly to produce a scheme for the possibility of transferring some private legislation in relation to devolved matters to them. But this clause is purely about making Members of the Assembly available to act as additional Commissioners.

Viscount COLVILLE of CULROSS

Is the noble and learned Lord suggesting that there should be a new brand of hybridity which involves conflict not only between the individual and the generality of the public but also between the Scottish individual and the Scottish generality, in the terms of conflict between devolved matters and United Kingdom matters? If so, I think we have a completely new field to uncover.

Lord McCLUSKEY

I am not corn-plaining about that; I am making no such suggestion. I am glad that the noble Earl signified, when I asked that question, that he is not using "hybridity" in any different sense. So far as I am concerned, the answer is fairly straightforward. There is nothing in this Bill which changes anything at all about hybridity. It does not change very much about private legislation. It merely makes it possible for an additional Commissioner to be appointed from a panel including Members of the Assembly.

Earl FERRERS

If the noble Earl were using "hybridity" in the other sense, what happens if you get a Bill which contains matters relating to devolved matters and matters referring to reserved matters? Can any part of it be discussed, or does part of it come to Westminster? What happens in that kind of situation?

Lord McCLUSKEY

If this is a viva voce question and answer session, I shall try to answer that. The answer is that nothing different happens from what happens at the present time, because what is plain from this Bill is that private legislation is not devolved. Accordingly, if someone wants to use the 1936 Act to come forward with a provisional order and seek appropriate confirmation, he Foes so in the ordinary way. All that:he Bill does—and it does nothing else ,n relation to private legislation procedure in Scotland, which is different from that in England—is to make it competent to have among the panel of Commissioners who investigate the preamble to the Bill, and anything else that they have to investigate, an Assemblyman.

The Earl of SELKIRK

I am grateful to the noble and learned Lord. None the less, I think that he might put something in the interpretation clause. I do not think that that would reduce the meaning of the 1936 Act. I certainly envisaged that this was a form of private legislation on devolved matters. That may not be the case, but there may be private legislation on matters which are purely devolved; at least, I imagine so. I hardly dare to express any view on this Bill, but I thought that it was conceivably possible. I should have thought, also, that there was a possibility of hybridity on devolved matters. If this were the case—I hesitate again to imagine what this might be—would this not need to be covered by this Bill?

The noble and learned Lord is suggesting that any form of hybridity would be a United Kingdom matter, and would not come under this Bill at all. I wonder whether he is quite sure about that. I should have thought it was conceivable that subjects which were wholly devolved would be dealt with under some form of hybridity within this Bill. I only suggest that, and I have no concise example to give, but I should not have thought that that was impossible.

Lord McCLUSKEY

Perhaps I did not give the best answer that I might have given to the noble Earl about the definition. May 1 refer him to subsection (4) of Clause 28 on page 13, lines 14 to 16, which states: Any expression to which a meaning is assigned by the Act of 1936 for the purposes of that Act has that meaning also for the purposes of this section. The noble Earl will find in the 1936 Act the definition of "chairman", and therefore it is incorporated by that subsection into the clause. So that the definition point is met within the terms of this Bill. Although it is not set out within the terms of this Bill, it is included in subsection (4). So far as private legislation is concerned, no different question arises, because all private legislation in relation to matters which are devolved or not devolved remains exactly where it is, other than the composition of the Commissioners. That is all.

The Earl of SELKIRK

I appreciate that. What the noble and learned Lord is saying is that if hybridity arose on a devolved matter, or on a non-devolved matter, it would be treated in the manner in which it is now treated by the Westminster Parliament.

Lord McCLUSKEY

Exactly.

The Earl of SELKIRK

I am still inclined to think that we should try to reduce explanation by reference where we can. Going back 40 years is perhaps a pity. I know that it is easy enough for lawyers, but for the general public there is something to be said for trying to make this Bill as reasonably comprehensible as possible. But I shall not press the Amendment and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

Clause 29 [Clerk, officers and servants of Assembly]:

On Question, Whether Clause 29 shall stand part of the Bill?

Lord BURTON

I am not sure that it is right that any clause in this Bill should pass without some comment. I hope that it will not be considered a ritual irrelevancy—if I may paraphrase my noble friend Lord Lauderdale—if I draw attention to the fact that earlier today we had a lengthy debate on maintaining order in the Assembly. Here we have an important officer called Black Rod. I understand that there is already a White Rod in Scotland and should we, therefore, not quickly stake a claim to a Tartan Rod, before the Red Rod takes over?

Clause 29 agreed to.

Clause 30 agreed to.

Clause 31 [Remuneration of members, etc.]:

10.15 p.m.

Lord GRAY moved Amendment No. 324: Page 15, line 13, after second ("Secretaries") insert ("and such persons who are to be treated as being members of the Assembly for the purposes of section 20(8) above").

The noble Lord said: This is a small Amendment and T shall deal with it as briefly as I can. The Amendment arises on a number of points which the Committee discussed when considering Clauses 2, 3 and 20 of the Bill. The people to whom I refer in my Amendment are those people for whom Clause 20(8) provides continuity of office when there is a change from one Assembly to another at dissolution and election.

I know that Clause 20(8) was not entirely concerned with pay, as the noble and learned Lord, Lord McCluskey, pointed out last week, but pay did enter into the question. In a clause where we are considering the fact that the Assembly shall decide what salaries shall be provided for the Members, I am wondering whether or not we should have regard to the position of people who may from time to time find themselves in the somewhat unusual situation of being considered as Members of the Assembly for the purpose of continuing in Executive office.

I have looked again at our discussions on Clauses 2 and 3. I believe that there is a possibility that on occasion there may well be a post-dissolution interregnum of perhaps a month. Since we do not know and cannot even guess at what arrangements the Assembly will make for its own pay and expenses, and since we cannot therefore envisage what balance there may be between pay for the salaried Members of the Assembly and remuneration for Executive office, I wonder whether or not this is a point which the noble and learned Lord could take on board for consideration when he is, as he has undertaken to do, giving consideration to the matters raised under subsection (8) of Clause 20. I beg to move.

Lord McCLUSKEY

At this late hour I do not want to take up time on such a tiny point. We agreed to look at certain matters. This one, I think, would fall within our review, so we will look at it as well.

Lord GRAY

I am grateful to the noble and learned Lord. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Earl FERRERS moved Amendment No. 121: Page 15, line 14, leave out ("Assembly") and insert ("Secretary of State").

The noble Earl said: Amendment No. 121 goes also with Amendments Nos. 122, 123, 124, 126 and 127. The joker in the pack is Amendment No. 125 which stands in the name of my noble friend Lord Drumalbyn, although I think that it refers to a similar matter. All of these Amendments refer to the payments, allowances and pensions of Members of the Assembly. The Bill states in Clause 31 that the Assembly is to decide what it is going to pay its Members. In other words, the Assemblymen will decide their own pay. I hope that the noble and learned Lord, Lord McCluskey, will not again have a go at me and say that I am emasculating the Bill. I see that it is the noble Lord, Lord Kirkhill, who is to reply. I am sure that he would not use such a horrible expression as that, and I can assure him that the intention is not to emasculate the Bill.

However, these Amendments are designed to ensure that it is the Secretary of State who decides the payments, allowances and pensions for the Assemblymen. In fact, the question would be decided in conjunction with the Assembly, but under these Amendments the Secretary of State would submit his proposals to the House of Commons by laying a draft of the order depicting the payments and allowances, and another place would have to approve them. I believe that it is right that the House of Commons should approve such pay and allowances. Clause 31(2) states that the Secretary of State will be responsible for the initial levels of payment until the Assembly make their first determination under Clause 31(1). This will be a very important decision to take because the levels of the first payments, which will be made anyhow by the Secretary of State under the Bill, will be likely to determine the subsequent levels; so in fact the Secretary of State will be pitching the levels initially at what he thinks is right. I suppose that the levels of the first payments will depend largely upon what kind of Assembly this is to be. I suppose that the Secretary of State already has an idea in his mind of what type of Assembly it is to be, and I hope that the noble Lord, Lord Kirkhill, will be able to tell us something about that.

As this is to be the Secretary of State's direct and immediate responsibility, the Government must know what they have in mind. I wonder whether the Government see this as being a full-time or a part-time Assembly. Do they consider that it is likely to meet as often as or less often than the House of Commons? For instance, will it have the same strange hours as the House of Commons, so that the Assemblymen can do two jobs? Or is it going to be a nine-to-five job, in which case the Assemblymen will not be able to have any other form of employment and, therefore, remuneration? As 150 Assemblymen are taking over only a proportion of the work now done by 71 Members of Parliament and the work that they take over only in fact covers one Ministry—namely, the Scottish Office —are the Assemblymen considered to be deserving of similar pay?

Exactly what have the Government got in mind and where do they expect the salaries of Assemblymen to be paid? Do the Government expect them to be like councillors and to get nothing but an attendance allowance? Or do they expect the Assembly to be rather like your Lordships' House, where you have expenses up to only a certain maximum? Or do they reckon that the Assemblymen should have the same level of pay as Members of Parliament? Or do they reckon that they ought to have the same level of pay as Members of the European Parliament? Or do they reckon that they ought to have something between the two?

The initial payments will set the tone expected of the Assembly, but once it is set up the Assembly can decide for itself exactly what it will pay, and in the end the United Kingdom will have to find the money for it. This will incur a cost to the United Kingdom Exchequer. I just wonder what will happen if the Bill is not amended in any way, and if the Assemblymen in fact pitch their salaries above the salaries of Members of Parliament. It would seem to be an almost inconceivable thing for them to do, but it is perfectly possible. I suggest that it is much better for the House of Commons to have the ultimate control by having to approve the level of payments, as indeed they have to decide the scale of pay of councillors. I beg to move.

Lord KIRKHILL

In responding to the noble Earl, Lord Ferrers, I wish to emphasise, as I have rather more than occasionally this evening, a theme which runs through Government thinking; namely, the freedom on the part of the Assembly to arrange its procedures. The Government would include in that freedom the responsibility for setting the pay of Assembly Members and Scottish Secretaries. Clause 31 provides that, once the Assembly is established, it will assume responsibility for determining the salaries and allowances and pensions of its own Members, just as the determination of those of Members of Parliament is a matter for the United Kingdom Parliament.

The Government do not think it appropriate or necessary for the salaries and allowances of Assembly Members to be controlled by Westminster, but I accept that there are two points of view about this. In the Government's view, these are essentially matters for the Assembly to determine in the light of its own appraisal of the likely workload of Assembly Members. Clearly, there is a link between the remuneration of Assembly Members, the working hours to be adopted by the Assembly and the regime required of Parties in the Assembly. The Government's view is that this cannot be settled now. These considerations will have a bearing on whether the Assembly is to be full-time or part-time, although these terms are perhaps somewhat ambiguous.

The real issue is probably whether it is to be possible for an Assembly Member to live on his pay, a point touched on by the noble Earl, or whether other income-earning activities are to be the rule. I am sure that noble Lords will have a view on these matters. The Government believe that at the end of the day these are matters for the Assembly to determine and, on the basis of its views, to set the salaries. As we have been saying earlier today, the Assembly will be responsible for a wide range of important matters affecting Scotland and, in our view, it would be out of keeping with these responsibilities to deny it responsibility for fixing its own salaries. In my opinion —and I have expressed this view and it is a personal one—we can confidently expect Scottish public opinion to play a crucial part in influencing Assembly decisions on these matters.

Nevertheless, the Government recognise that potential candidates will need to know the likely level of remuneration before they present themselves for election at the first Assembly. For this reason, the Government accept that they will have to set initial salaries and this will have to be done in good time for the first election. The Government believe that the appropriate time is after the result of the referendum is known and the draft of the first commencement order has been laid before Parliament and approved. Clearly, the Government will take their decision as to what should be the initial pay of Members of the Assembly in the light of the views expressed in Parliament and elsewhere, and as we move towards the date of the first election. The Government would be open to the accusation of acting prematurely if they made an announcement before then. The Bill provides in subsection (2) that the Secretary of State should direct what the initial salaries of the Members—and, I stress, only the Members—should be without reference to Parliament in any way. I think that is as fair a résumé of the Government's position as I can give to your Lordships this evening.

Lord GLENICINGLAS

I am a little worried by what the noble Lord has just said because he is talking about Government thinking. I have been listening to a lot of the debate on this Bill; clearly there are some parts on which the Government have been thinking very deeply and have told your Lordships that as a result of their very deep thinking they are not prepared to move from the position they are in. There are other parts of the Bill, as in this case, where the noble Lord refers to Government thinking, where it is perfectly clear that they have not been thinking at all and have not even begun to do so. Therefore, they are claiming the merit of not thinking about it in order to leave the Assembly with the appalling problem of having to think about it itself. This is really quite a problem for the new Assembly in the light of the fact that we all—those of us who have been Members of Parliament for some time and are now here—know that the general public intensely resents the idea that Parliament sets its own salaries. It may be right or it may be wrong; that is neither here nor there.

In this case, the Government are saying that the Assembly must set its own salaries. I know of no single thing which will cause more fury throughout Scotland than that. After all, the Government have been at this for a number of years. I cannot believe that they have not decided the sort of amount of time the Assembly is going to give to its business. I would guess that, in a normal year, about three months is right, and I have not done the thinking the Government must have done. If the Government cannot suggest even the approximate level of salaries but are going to leave it all to the Assembly, then whatever the Assembly does will be spat on by everybody in Scotland on the ground that the Members are feathering their nests.

The Government have been responsible for at least two years for thinking deeply about this. This is not the first time that the Government have produced some ideas, but they should be honest with your Lordships and say, "We think the average workload of a Member of the Assembly is so many months, or whatever it may be, and we think the appropriate level of salary should be around this figure", instead of continually saying, "We are not thinking about this at all; we are leaving it to the Assembly to decide". There is no single thing which will cause the Assembly more trouble and more discredit, whatever the unfortunate Members of the Assembly decide, than leaving it to them, out of the blue, to settle their own salaries.

10.31 p.m.

Lord MACKIE of BENSHIE

I agree with the excellent points made by the noble Earl, Lord Ferrers, that the salaries fixed by the Government are for the Assembly during the period when they are responsible. I thought that this point was taken and covered well by the noble Lord, Lord Kirkhill, when he said that the Government would fix it and would announce the figure after the first order was made for an election. I think that is quite fair because there is nothing that people would discuss more; there is no red herring that you could produce that would provoke more useless discussion than naming a figure or a salary at the present time. I think that is a wise move, and it was a sound point the noble Earl made that this would have a tremendous influence on salaries.

With regard to people fixing it, I agree it is a beastly thing to fix your own salary and people will scream about it, but it is very economical for the country. There is no question but that Members of Parliament have been grossly underpaid for years because they fear the popular Press so much. If I may digress, the House of Commons for years has tolerated the most appalling conditions in catering because every time the food gets better there is a scream from the popular Press that it is losing a whole heap of money. The House of Commons should be quite firm and say that there should be a decent standard of catering and efficiency and proceed without listening to screams from elsewhere.

I think the scheme will be quite economical—and in Scotland it will be even more economical. It is most practical to set the figure and then trust the Assemblymen to follow it. If the Assemblymen are wise I would suggest that they fix some Civil Service figure, and say that it will stay like that, otherwise they will get into the poverty trap into which MPs have got themselves at present.

Lord DRUMALBYN

As the noble Lord Kirkhill has referred very much to what is in my Amendment, I wonder whether it would be convenient to discuss my Amendment No. 353 at the same time. He talked about the draft of the first commencement order. How long would he estimate—I do not ask for a firm figure—that the first commencement order would run before the election? What time would elapse between the first election order and the actual election? I would imagine it would have to be something of the order of 28 days in order to be certain of getting the draft approved by both Houses of Parliament; and then, of course, there is the time of the election itself. I thought I was not very far out in setting 60 days as a minimum.

The problems here are quite easily discernible. First, somebody has to set the level of salaries. The question is: Who is to do it? There are arguments for the Secretary of State doing it. On the other hand, who is he really responsible to in doing so? Supposing that he does it all by himself. He will be questioned about this in the Houses of Parliament, anyway. This will not pass without comment. Some will say that it is too much. Some will say that it is too little, I dare say. But would it not be more sensible to get it approved? Would it not be more sensible to get formal approval from the House of Commons for the proposal of the Secretary of State to fix the salaries in the interim period until the Assembly fixes its own salaries?

Would it not be more sensible to do that, because the Secretary of State will thus obtain a general consensus of opinion behind him. Otherwise, he will not know whether this is or is not acceptable to anybody. If he does it, he will receive much criticism. Some will say it is too much. Some will say that it is too little. I should have thought that it would be more sensible to get the approval of the authorities.

I agree with the noble Lord, Lord Kirkhill, that the candidates have a right to know what pay they will get, at least in the interim period. I agree that they should know that before they decide to stand for election. I think that the noble Lord, Lord Kirkhill, will agree, although he did not deal with this point, that, whatever the level at which the Secretary of State fixes the salaries, this will tend to influence very strongly the level of the salaries that may ultimately emerge.

I am sure that my noble friend Lord Glenkinglas is absolutely right when he says that in doing this the Secretary of State must take into account the work burden of the Members of the Assembly. There must be some idea about this. It may prove to be wrong, but if it is proved wrong then it may be altered. But it will not prove to be wrong straight away.

I think that the great danger is that the salary will be set too low as a start. I know that Members of the House of Commons may resent this, but I am quite certain that it should be fixed at a decent level, a respectable level, to start with. Otherwise there will be just one long drag behind, as has happened in the House of Commons, which is thoroughly undesirable. That certainly will not add to the prestige of the Assembly.

Those are the main points that I wanted to make. The Government should be thinking very carefully indeed about how long the Assembly is likely to sit. Will it be so many days a week? Will it be so many weeks in the year, or what? They should fix the levels having regard to that, but not having regard to that alone. After all, if one is elected a Member of an Assembly then one is a member of the Assembly throughout the year. One will do a great deal of work on that job even though the Assembly is not sitting.

These are important matters that have to be considered. I hope that the Government will lose no time in considering them. I am not asking that they shall give us the answer now. I tend to agree with the noble Lord, Lord Kirkhill, that it would not be desirable to disclose too soon the amounts that are likely to be paid, if anybody has thought about it yet. I rather doubt whether they have. I do not really think that that matters. The main thing is to make certain that the level of salaries for the Members of the Assembly is adequate to secure the kind of Member that we want to have.

Lord BURTON

I should like to know whether the Government will give an assurance that there will be no question of attendance allowances such as happens in local government? The mistake in that connection must now be realised and it is vital that the salary should be fixed and that there should not be an attendance allowance.

There is the further problem that, if the Secretary of State does not appoint the salary from the start, then, when the Assemblymen stand for election for the first time, they will not know what they will be paid or what their position will be. Certainly, as regards the initial salary, I should have thought that it was an absolute must that the Secretary of State should state before the election what they will be paid.

Lord WILSON of LANGSIDE

I wonder whether the noble Lord can help me on two small incidental points. First, have the Government in their thinking on this matter to date, reflected on the circumstance that many of the Members of the Assembly, like many of the Members of the other place, will have to maintain two homes—one in Edinburgh and one elsewhere? Secondly, if they have, do the Government not agree that that may make it a little difficult to resist the conclusion that the 150 Members of the Assembly should not be paid appreciably less than the 71 Members of Parliament who are doing the work at present?

10.42 p.m.

Lord KIRKHILL

First, I shall respond to the noble Lord, Lord Glenkinglas, and reiterate the point made by the noble Lord, Lord Mackie of Benshie, and, indeed, the noble Lord, Lord Drumalbyn, that the Secretary of State will set the initial remuneration of Assembly Members. I should suppose that that would create the basis for a continuing formula. To take up the point made by the noble Lord, Lord Burton, I certainly accept the criticism which he made as regards attendance allowances. I do not think that any factor is ruled out at this stage, but I shall certainly give consideration to the relevant point which he made in that connection.

I should like to revert to the noble Lord, Lord Drumalbyn, for a moment. I can advise him that the commencement order will run for several months. We envisage that it would be of a longer period than, for example, 60 days. I have to accept that we must give consideration to the question of the number of days which the Assembly will sit and that must be a factor in determining initial remuneration.

As to the first part of the point made by the noble and learned Lord, Lord Wilson of Langside, I shall specifically draw his comment to the attention of the Secretary of State. As to the latter part, I do not think that I shall make any observation.

Lord GLENKINGLAS

Before we leave this Amendment, I hope that whoever makes these decisions will study what is happening at present in America. At one time—for good reasons or bad—I had the opportunity of going round a great deal of America and seeing how various States ran their particular operations. I was very impressed with several States which had the same sort of problem —although not exactly the same—as the Assembly would have. They had discovered over the years that much the most efficient way, both from the point of view of running the State and from the point of view of the Members of the State Councils or whatever they were called—State Legislatures—was to run an operation by which they met for perhaps two months in February and March, for instance, and two months in October and November and they never met again at all unless they were specifically summoned.

Having some slight knowledge of Scottish legislation, I do not think that it would be in the least impossible to deal comfortably in four months with all the legislation which is, at present—and there is perhaps already too much—going through the House of Commons and your Lordships' House. That would itself make it possible for a great many Members of the Assembly to deal very effectively with their own businesses and outside interests. They would know that perhaps from time to time the First Secretary could summon them back for an important meeting on some matter, but for the remaining eight months, or even nine months, of the year they would be free to look after their constituencies in a proper manner and to get on with their own businesses. That would make it much easier to attract the right sort of person to be a Member of the Scottish Assembly.

Remembering that this is what I want to do, I hope that the Government Front Bench will not think of this as just a stupid intervention in order to waste time. It is not. It is in order to try to get people to think in terms of the right sort of Assembly, and the right conditions to attract the right sort of people. It must not waste the time of, I hope, very competent and busy people who will give their best thoughts and ideas to the future government of that part of Scotland which your Lordships' Committee decides to devolve.

10.46 p.m.

Earl FERRERS

I am bound to say that I feel disappointed about this. Here we have the Government setting up an Assembly, all the paraphernalia of the Bill, all the devolved powers, the Assemblymen, and so forth, yet we do not know what it will he like. We do not know whether it will be a full-time or a part-time Assembly; we do not know what its hours of work will be; we do not know what the pay will be. The noble Lord, Lord Kirkhill, says that that is all right, that we should leave it to his friend the Secretary of State who will eventually decide the right level. He does not even have to submit it to Parliament. I agree with my noble friend Lord Drumalbyn that it will be a good thing, when the Secretary of State initially determines the levels of pay or expenses and allowances, that he should have the support of Parliament, that he should lay a draft order before Parliament and know that his recommendations have the support of another place.

The curious thing is that when another place decides its own salaries there is, as my noble friend Lord Glenkinglas said, always the most unpleasant feeling about having to set one's own figure. To set the Assembly's figure, the Government have Lord Boyle's committee and the Top Salaries Review Body to say what level should be achieved. Very often the Government of the day then suggest a lower figure for Members of Parliament. All that is gone through for Members of another place. However, here we are to have the Secretary of State, apparently without any advice and support from the House of Commons, saying, "These are the figures that the Assemblymen will receive". The least that ought to be done is for the Secretary of State to have the backing of the House of Commons so that he knows that his suggestions have the approval of another place.

The noble Lord, Lord Kirkhill, said that a theme runs through this Bill that the Assembly should look after itself. Some of us see a theme running through the Bill too, that we think the Government are letting the Assembly look after itself a little too much. There is a very distinct difference here, because although the Assembly sets its own figures and its own levels of pay, of course it does not have any powers to claim the taxation or money with which it pays its Members. In the end that has to come from the United Kingdom, and from Westminster. It is disappointing that when I asked the noble Lord, Lord Kirkhill—I thought that this would be a good opportunity—how the Government saw this, whether it was to be a full-time or part-time Assembly, whether the Members would be paid salaries or expenses, he said, "Wait until the referendum has taken place and we will tell you". But the time to know is now. The noble Lord looks agitated. Is he?

Lord KIRKHILL

I am not agitated, but I said that we would listen to what Parliament had to say and to what others might say.

Earl FERRERS

That means, with any luck, that the noble Lord will have listened to this—I was not suggesting that he was not listening, even though there might have been distractions—and will be able, if we come to another stage of the Bill, to say that perhaps he agrees that there should be some United Kingdom control.

Lord KIRKHILL

I apologise for interrupting the noble Earl. It is not on a point that he is making but on the supposition that he is just about to sit down. I must apologise to the noble Lord, Lord Drumalbyn, for quite failing to take up an important point because we ranged into his Amendment as well in our earlier discussion. It was on the question of exercising a Statutory Instrument without Parliamentary procedure, and indeed the noble Lord made a specific reference to that. The Government's view there is that it is difficult to see what purpose that would achieve; where we could make the change he suggests. We consider the provisions and directions made by the Secretary of State would be well known. It is only right to place that on the record.

Earl FERRERS

Before I withdraw the Amendment, may I ask the noble Lord one tiny question? He has been kind enough to listen to all the suggestions which have been made. If we were to put down a similar Amendment on Report stage would he be able to give us some idea of how he visualises the Assembly? Does he expect it to be full-time, or part-time? The Government must know, and the Secretary of State is going to fix these figures, so he must have some idea of what is anticipated. It would be helpful to Parliament to know this.

Lord KIRKHILL

All I can say at this stage is that these matters are being discussed. Whether by Report stage I should be in a position to formulate matters with more precision is something I could not answer as of this evening.

The Earl of PERTH

Before the noble Earl, Lord Ferrers, withdraws his Amendment may I draw attention to the fact that the Government have in fact made a guess at what is going to be the cost of the salaries and related costs of Members of the Scottish Assembly. I look at subparagraph (iii) in the Introduction where it talks about £6¾ million. If that is a figure which is quoted, it cannot be out of the air. It must be a figure which has been considered rather carefully by the Government.

They have told us that the staff will be a further 240 in number. If they get paid £5,000 a year that is £1¼ million. That leaves £5½ million in respect of salaries and related costs for Members of the Assembly. All this seems to me to be a degree of shadow boxing. It is somewhat unreal when the Government must have given a good deal of thought to this. It would help us very much if we were told, if not now later, just what is in mind.

As I understand the situation, the Secretary of State at some time—and when I am not very clear—is going to give the first scale for the salaries of the Members of the Assembly. Then the proposal is that subsequently that shall be decided by the Assembly. I think in some degree that is a right procedure, because if the Assembly went wild afterwards and tried to do too much the cost of it would come out of the Consolidated Scottish Fund and the country would object if the cost was too high. Having said that, it seems to me that the Government must have given a great deal of thought to this, and must be aware in some degree of what they are talking about, otherwise we should not find the figure which we find in the Introduction to the Bill.

Earl FERRERS

I think that the noble Earl's intervention is extremely helpful. Obviously the Government have an idea as to what form the Assembly is going to take, particularly as they have fined it down to £.6¾ million and not f7 million. That seems to be a precise figure. It does not help us from the point of view of getting the answer which I had hoped to get, because my modest arithmetic—and, of course, on the subject of arithmetic I would willingly give way to the noble Lord, Lord Mackie of Benshie—tells me that if one divides £6¾ million by 150 one gets £44,000, which I suggest is a fair salary for anyone, though that must also cover the staff. Obviously, the Government have an idea of the form this will take, and that idea Parliament should know in advance of the referendum and in advance of the passing of the Bill. I hope that at a later stage the noble Lord, Lord Kirkhill, will be kind enough to give us the answer; I know he will do his best to find out. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 122, 123, 124 and 353 not moved.]

10.56 p.m.

Lord DRUMALBYNhad given Notice of his intention to move Amendment No. 125: Page 15, line 19, after ("may") insert ("by order"). The noble Lord said: I hope the noble and learned Lord, Lord McCluskey, will at any rate consider my arguments again on the question of an order here to validate, so to speak, the Secretary of State's decision on what the salaries of the Members of the Assembly should be. I think it would put him in a stronger position if he got validation, and I do not mind whether it is by Affirmative or Negative Resolution. His argument that, if he announced them, they would then be well-known and therefore no authority of Parliament would be required, I thought was rather ingenuous. I am not trying to be difficult; I am trying to make things easier for the Secretary of State. I hope the noble and learned Lord will consider this matter again. Having said that, I do not propose to move the Amendment.

[Amendment No. 125 not moved.]

[Amendments Nos. 126 and 127 not moved.]

Clause 31 agreed to.

Lord STRATHCONA and MOUNT ROYAL

The next Amendment, No. 328, stands in my name, and it goes with No. 329. These two Amendments raise a fairly substantial matter and I do not know whether the noble and learned Lord, Lord McCluskey, wishes us to embark on them at this hour or whether he thinks this would be a suitable point at which to adjourn. I am quite willing to move Amendment No. 328 if that is the wish of the Committee.

Lord McCLUSKEY

When the noble Lord says "substantial", does he mean five minutes on the one hand or six minutes on the other? I think it would suit the convenience of some noble Lords if we got on to and into and out of the next clause.

Lord STRATHCONA and MOUNT ROYAL

Speaking for myself, I do not expect to take more than a few minutes, but the points that lie behind these Amendments are quite substantial and I should not have thought the discussion could be less than about half an hour. I am entirely in the hands of the Committee in this matter.

Lord McCLUSKEY

If the noble Lord expects to take a few minutes, let us be optimistic and hope the discussion will not take half an hour.

Clause 32 [Agency arrangements and provision of services]:

[Amendments Nos. 354 and 355 not moved.]

10.59 p.m.

Lord STRATHCONA and MOUNT ROYAL moved Amendment No. 328:

Page 16, line 3, at end insert— ("( ) In the event of a function being discharged by the employees of any relevant authority, the Minister of the Crown responsible for the normal activities of that authority shall be answerable to Parliament for the activities of the authority's employees in discharging that function.")

The noble Lord said: I will do my best to deal with this matter in a few minutes, and I suggest it would be convenient to discuss at the same time Amendment No. 329; they are linked, although the points to which they refer are slightly different. The two taken together are intended to address themselves to three problems. When the first of these was raised in another place by one of my honourable friends he received a somewhat unsympathetic answer, perhaps because they were in the same sort of time hassle as we are at the present time.

Lying behind these Amendments is the question of the answerability of Parliament for agencies of all kinds, and the reason I felt it right to warn the Committee before we embarked on it is that this is a considerable issue of constitutional and Parliamentary principle about which we have argued all the time, particularly at Question Time. When Questions such as those relating to the Post Office come up, there is always the problem of whether the Post Office is left to run its own affairs, and if it is. how is Parliament made responsible for it. This matter arises here out of the use of the word "agency".

Mr. Maurice Macmillan asked one Question of the Under-Secretary in the Commons. It was that, as the Bill stands, if a Department is asked to act as an agent by a Scottish Secretary, is there not a danger that the Department then cannot answer a Question if it is asked one in Parliament? The second point is the same issue the other way round. Mr. Ewing mentioned the two points when he was dealing with this Bill in another place. He said that a Scottish Secretary can enter into an agency arrangement with a United Kingdom Minister. That is the point we have already dealt with. But then it can be worked the other way round, in that a United Kingdom Minister can enter into an agency arrangement with a Scottish Secretary.

Later on, I think it was agreed that where a United Kingdom Minister enters into an agency arrangement with a Scottish Secretary, there is no question, as Mr. Ewing put it, of "shunting responsibility", thereby getting out of being responsible for answering to Parliament for something in respect of which an agency arrangement had been made. I cannot use the word "devolved" here as it has been rather over-used. So the first question is: Can the Minister confirm that that is the case, and that a United Kingdom Ministry would go on being responsible for answering in Parliament for any question on which it had an agency agreement with a Scottish Secretary? But then what happens when we turn it the other way round?

Perhaps I had better leave that for a moment, and speak to the third question, which is the purpose of the second Amendment. Here we have the fact that there is no mention in the Bill of how agency matters are to be paid for. Who is to be responsible for paying for an agency arrangement? It is a little alarming if one reads this clause in relation to, I think, paragraph 8 of Schedule 2, which we discussed at some length earlier. There is an alarming potential increase in the number of powers which can be conferred upon agencies and then taken out of Parliamentary scrutiny and out of financial control. For example, to whom will the agencies be responsible, and to whom will they account for the money? How is the money to be raised, and how does Parliament control spending of such money? If it should involve an issue of taxation, how is that to be dealt with, controlled, and discussed? That is on the financial issue.

If one goes back to the more general issue about answerability and accountability in Parliament, one thinks of people such as the Crown Agents. I think it is generally conceded that there was a certain lack of Parliamentary control in that case. I am not trying to be critical of the Crown Agents; I am merely trying to use this as an illustration. This leads me on to one other question. In the Bill it is stated what a relevant authority is. It states that it is … any public or local authority or public corporation". But then there is no attempt to define what is meant by a public corporation.

I am not sure that I have moved this adequately, because it is not a very simple matter. I think the purpose of these three Amendments is to ask the Government whether they are satisfied that there is adequate accountability, both as far as Parliamentary responsibility is concerned and as far as financial responsibility is concerned. We fear that, as the Bill now stands, there is a danger of a great increase of public corporations undefined, and there is a danger that we may be extending the area of immunity from Parliamentary accountability in what might prove to be a rather undesirable fashion. I beg to move.

11.6 p.m.

Lord McCLUSKEY

My impression is that the noble Lord is over-emphasising the complexity of this clause. It simply enables arrangements to be made between the Scottish Secretary, on the one hand, and any relevant authority, on the other, for one party to carry out functions or provide services on behalf of the other. That is the purpose of it. There is no compulsion on either party to enter into any arrangement. For example, there could be no question, as was suggested in the debate in another place to which the noble Lord referred, of a Scottish Secretary requiring a United Kingdom Minister to carry out a function. So, accordingly, one gets a principal and agent agreement only if both parties are willing to enter into it, and that is the normal situation. It is necessary to have a clause of this kind because a person or body on whom a statutory duty is imposed cannot delegate that duty or discharge it through any other person unless the Statute so provides; so this clause is to provide that general authority.

This kind of arrangement is well precedented. As the noble Lord will be aware, agency arrangements between the United Kingdom Government Departments, on the one hand, and Northern Ireland Departments, on the other, are a long-standing feature of the relations between Whitehall and Stormont, and provision was made for them in Section 63 of the Government of Ireland Act 1920, and was repeated, in substance, in Section 11 of the Northern Ireland Constitution Act 1973. Many arrangements were made under the provisions of the 1920 Act, to which I have referred. For example, the Ministry of Agriculture for Northern Ireland carried out a great deal of work on an agency basis on behalf of the Ministry of Agriculture, Fisheries and Food. Another example I can give to the Committee is that the Commissioner of Valuation for Northern Ireland valued property for the Treasury and the Commissioners of Inland Revenue and Customs and Excise. Furthermore, Her Majesty's Stationery Office in Belfast did a great deal of work on behalf of Northern Ireland Government Departments. These are merely illustrations of how it has worked, really without difficulty, over a very long period of time.

I was asked specific questions, and I shall endeavour to answer them in the light of that general explanation. I was asked: Will the United Kingdom Ministry still be responsible? Of course, the answer is, Yes. There is a rule, which even English lawyers will recognise, qui facit per alium facit per se: he who acts through an agent is acting for himself, as it were; he is responsible for what the agent does. Accordingly, the United Kingdom Minister remains responsible for what his agent does. Then I was asked: What are the arrangements for payment? The arrangements for payment are a matter for negotiation between the principal, on the one hand, and the agent, on the other. Reference was made to paragraph 8 of Schedule 2. I am happy to inform the Committee that our discussions on paragraph 8 proceed apace, and I hope 1 shall be able to bring forward such a modified draft that I shall be greeted with cries of acclaim from every part of this Chamber. But we are getting there, and I think no difficulty need arise.

Then I was asked the question: To whom will the agency be responsible? Again, the people who are responsible for exercising functions remain responsible, despite the fact that they delegate the actual exercise, under these powers, to their agents. I do not think there is any difficulty there. The conferring of the power to enter into arrangements of agency carries with it the right to enter into arrangements regarding reimbursement; but it does not remove responsibility from the person who is statutorily responsible. I think that if one does not approach this clause as if it were something absolutely novel which has been created overnight and if one regards it as being really a repeat in substance of the arrangements that were made and which worked very well for a long period of time, one will see that it does not carry the complexities that the noble Lord fears. In the light of that explanation, I hope that he will not feel it necessary to press these Amendments.

Lord GLEN KINGLAS

I am not certain that I fully understood the answer, as perhaps I did not fully understand the mover of the Amendment. This perhaps is because we have moved rather faster than both Front Benches anticipated a little earlier in the evening. But my noble friend Lord Strathcona said that one of the problems that arises is when people ask what they think are reasonable Questions in Parliament—and presumably the same thing would arise in the Assembly—where they are continually told that the Government cannot possibly answer that Question because it is nothing to do with them.

This was the way my noble friend put it at the beginning of his explanation of his Amendment. The noble and learned Lord made a most admirable answer which related entirely to how Government work within themselves. That, if I dare say so, bore no relation at all to what my noble friend said was the point of the Amendment.

There are real problems here because whenever the Assembly meets it will have, inevitably, particularly when it first meets, a lot of Questions it wants to ask the Secretaries (or whatever their equivalent of Ministers will be called) and if they are continually to be told that these have nothing to do with the Ministers, I can see a lot of trouble arising. I may be clean off the point, but I listened to what my noble friend said in moving his Amendment and I listened with pleasure to the extreme felicity of the noble and learned Lord's answer; but they bore no relation to one another.

Lord DRUMALBYN

May I ask briefly if the noble and learned Lord will be good enough to supply an answer to the two points I put down? Does "function "cover the provision of services? The noble and learned Lord will notice that the last two lines on page 15 refer to the provision by one of them for the administrative or professional technical services. This is not necessarily a function, but it is a provision of services. It may be that the word "function "is intended to cover that as well.

Lord McCLUSKEY

I think the answer is that, in this context, "function" is distinct from its use in relation to local authorities. ft is not intended to have any technical meaning; hut it does include the provision of services.

Lord STRATHCONA and MOUNT ROYAL

What I had in mind was certain organisations such as the National Enterprise Board; and that is, presumably, an agency within the terminology of this clause. Is the noble and learned Lord now telling us that the Government will be wholly answerable for everything that something like the NEB does? One of the things we have been at some pains at times—and this comes largely from this side of the Committee—to say is that if you are to have these corporations you should not be continually meddling in their affairs; and one form of meddling is to ask questions.

Lord McCLUSKEY

I do not suggest anything in this clause enlarges or extends the responsibility of the Government. I am saying the fact that the Government or a public body make an agency arrangement means the responsibility which it owes is not diminished by the agency arrangement. It becomes answerable for its agent in the normal way.

Lord STRATHCONA and MOUNT ROYAL

In effect the noble and learned Lord is telling us that these clauses would not in any way alter Parliamentary accountability and responsibility one way or another; although I take it it may happen at one further remove by the interposing of the Scottish Secretary in between, in the chain of command.

Lord McCLUSKEY

That is exactly what I was saying: no responsibility is altered, merely that it is possible to engage an agent to carry out your function. If I in private life engage an agent to do something for which I am responsible, then I am answerable for the way he does it. There is no difference here.

Lord STRATHCONA and MOUNT ROYAL

We have done rather better than I thought so far as the time is concerned. I am happy to ask permission to withdraw the first of my Amendments.

Amendment, by leave, withdrawn.

[Amendment No. 329 not moved.]

Clause 32 agreed to.

Clause 33 [Provision of information]:

[Amendments Nos. 356 and 357 not moved.]

Clause 33 agreed to.

Clause 34 [Power to make changes in law consequential on Scottish Assembly Acts]

11.16 p.m.

The Earl of SELKIRK moved Amendment No. 252: Page 16, line 15, leave out from second ("of") to ("(including") in line 16 and insert ("any part of the United Kingdom").

The noble Earl said: I hope that this is a purely drafting Amendment. The Bill here speaks of amendments of the law of the United Kingdom or any part of it. There is no law of the United Kingdom. There is the law of England and the law of Scotland. I have suggested inserting the words: any part of the United Kingdom". I beg to move.

Lord McCLUSKEY

The point that the noble Earl takes is one that we understand; but I do not think that it is necessary to amend the Bill in this regard. We looked at it and I understand very clearly what the noble Earl is saying. Indeed, the words themselves are closely modelled upon words in the Northern Ireland Constitution Act 1973. It was thought by the draftsman that it would make it quite clear, when one talked about the law of the United Kingdom or any part of it, that sometimes one passes Statutes which apply to the whole of the United Kingdom; sometimes one passes Statutes which apply to only parts of it. The wording of this clause would make clear what was envisaged here. It is merely intended to be a drafting improvement upon the wording of the 1973 Act where similar words are found.

The Earl of SELKIRK

I do not mind what it improves. The noble and learned Lord is talking about something which does not exist. The noble and learned Lord knows that perfectly well. The words in my Amendment do exist and are perfectly clear. I fail totally to understand what he is saying. I do not mind what he has said about Northern Ireland because they practise substantially the law of England.

Lord McCLUSKEY

When the Bill talks about the law of the United Kingdom, what the draftsman has in mind, and what I have in mind when I defend it, is that the United Kingdom Parliament may pass an Act which applies throughout the United Kingdom. It is the law of the United Kingdom. I know that if one wants to be a purist, one can say that there is only the law of Scotland, the law of England, the law of Wales or Northern Ireland; but it is surely not a nonsense to say that an Act of Parliament, which applies to every part of the United Kingdom, can properly be described as the law of the United Kingdom.

Baroness ELLIOT of HARWOOD

I am not a lawyer but I have always understood Scottish lawyers to say quite categorically—and I have heard noble Lords say it in the House—that the law of Scotland is separate from the law of England. Now the noble and learned Lord suddenly says—and this surprises me very much—that there is no difference: the law of the United Kingdom includes Scotland. The noble and learned Lord is a lawyer; he holds an important post in the Government as a lawyer. To announce suddenly to all of us that the law of Scotland is not different from the law of England surprises me more than I can say.

Lord WILSON of LANGSIDE

Perhaps the answer to the noble Earl's point depends to some extent upon the terms of Article 19 of the Treaty of Union, which I do not have freshly in my recollection. I am sure that the noble and learned Lord has, and perhaps he could tell the Committee whether that gives the answer.

Viscount COLVILLE of CULROSS

I would only suggest very briefly that if the law which my noble friend Lord Selkirk refers to is the law of any part of the United Kingdom, and it so happens that it is the law of all parts of the United Kingdom, we are really on common ground, and I do not understand why it is that even a minor Amendment of this sort cannot possibly be made.

Lord McCLUSKEY

Would it satisfy the Committee if 1 were to say that we will look at this again?

The Earl of SELKIRK

On that very forthright undertaking, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Baroness LLEWELYN-DAVIES of HASTOE

I think that perhaps this is the time when I should move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.