Lords Sitting of 25 April 1978

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Carlisle.

RADIO FREQUENCIES: CITIZEN'S BAND
Lord TORPHICHEN Lord TORPHICHEN: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they intend to allocate radio frequencies for citizen's band use in this country, and whether this is to be included in the brief for United Kingdom delegates to the World Administrative Radio Conference (WARC) in Geneva in 1979.
Lord WELLS-PESTELL: My Lords, we have no plans to introduce Citizen's Band radio in this country. The World Administrative Radio Conference to be held in Geneva in 1979 is concerned with the allocation of frequency bands in broad terms. International radio regulations do not distinguish Citizen's Band radio as such; it is just one of the services coming under the general category of mobile radio, and the allocation of frequencies for such a service is therefore a matter for national action.
Lord TANLAW: My Lords, is the noble Lord aware that he has given a rather depressing Answer? May I ask the noble Lord whether he would not agree that Citizen's Band frequencies that could be made available are lying unused already in this country? Secondly, would the noble Lord not agree that Citizen's Band radio could make a great contribution to civil defence in times of national emergency?
Lord WELLS-PESTELL: My Lords, my understanding is that there are no bands which are available. Some of the bands that noble Lords may well think available are used, I am informed, for
1608
important and essential Government purposes. Perhaps I had better leave it at that. With regard to the other comment made by the noble Lord, it is a matter of opinion whether Citizen's Band radios would serve the useful purpose they are alleged to serve. If one looks at what is happening in the United States of America, one can recall that not so very long ago one of their major motorways was held up and all the traffic diverted because somebody using a Citizen's Band radio gave an instruction that it was dangerous to go along there. It could be used for all sorts of purposes. His Royal Highness the Duke of Kent was responsible for a committee which has sent a report to the Government. The Government are looking at that report, and if it has anything to say that will be helpful they will say so in due course.
Lord TANLAW: My Lords, the noble Lord mentioned the United States. Is he also aware that the chief of police in the State of Ohio admitted publicly that through the use of Citizen's Band radio at least 500 lives were saved during the great blizzard?
Lord WELLS-PESTELL: My Lords, we are a much smaller country and there is no reason to suppose for one moment that the facilities we have at present and those which we use in times of national disasters are not adequate. We think they are.
Lord HARMAR-NICHOLLS: My Lords, the noble Lord said that certain wavelengths were being reserved for essential Government purposes. Are they being reserved unused, or are they being used? Are they used for rehearsals or for practice in case an emergency arises, or are they being just left and not used at all?
Lord WELLS-PESTELL: My Lords, I would not say thay are used for 24 hours a day, but they are in fairly continuous use.
Lord TORPHICHEN: My Lords, is the noble Lord aware that one of the problems in parts of Scotland this last winter was lack of communications? Some farmers were reduced to making signs in the snow in order to attract the attention of

1609
helicopter police, because the telephones were down and they had no other means of communication.
The Earl of CROMARTIE: My Lords, may I support my noble friend on this—
Several noble Lords: Order, order!
Lord WELLS-PESTELL: My Lords, would the noble Earl be good enough to give way? I have to follow the Rules of the House, which means that I have to reply to one noble Lord at a time. What the noble Lord said may well be so, but I think we have seriously to consider the enormous disadvantages of having a vast army of people who can communicate with each other very easily, given perhaps the hoaxes which are known to exist in America and on the Continent in regard to all sorts of other things. We have to compare those disadvantages with the advantages to which the noble Lord has made reference.
The Earl of CROMARTIE: My Lords, may I ask the Minister whether he is aware that during the recent blizzard British Rail lost two trains? Luckily, there was no loss of life, but had they had these communications they would have been found. The second train was sent out to look for the first.
Lord WELLS-PESTELL: My Lords, if British Rail with its vast network of stations can lose two trains, I do not think anything can help them.
Viscount ST. DAVIDS: My Lords, is the noble Lord aware that there is a point of liberty in this and that there ought to be freedom to communicate? Is it not better to go into the matter and see what happens and then, if there are some evil results, to do something about them, rather than stopping our liberty now?
Lord WELLS-PESTELL: My Lords, I do not think that society takes very kindly to people who feel that they have liberty to rob, plunder, rape and do all kinds of things.
Lord WYNNE-JONES: My Lords, is my noble friend aware that British Rail have very considerable experience in losing trains?

SERVICEMEN'S FAMILIES: HOME LEAVE
2.43 p.m.
Lord SEGAL Lord SEGAL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will encourage the granting of home leave to wives and families of British troops in Germany to enable them to stay with relatives in Britain during such periods as their husbands are serving in Northern Ireland, provided that no charge is made upon public funds.
Lord WINTERBOTTOM: My Lords, there is nothing to prevent the wives and families of British Servicemen in Germany from returning to the United Kingdom at their own expense while their husbands are serving in Northern Ireland, if they so wish. Indeed, they are allowed one return journey a year at public expense and many families already take advantage of this concession. However, I should add that the decision as to whether to return to the United Kingdom must rest with the family concerned. They will, for example, have to take into account possible disruption of children's schooling and the availability of accommodation with relatives in the United Kingdom.
Lord SEGAL: My Lords, I should like to thank my noble friend for that very helpful reply. Would my noble friend agree that, in view of the fact that many of these wives are young and have families of very young children, this concession goes a long way towards relieving the present anxieties of many of these serving families? But could not still wider facilities be afforded for certain very deserving cases, certainly where welfare officers in Germany recommend them, and where families are not fully able themselves to meet the costs of travelling?
Lord WINTERBOTTOM: My Lords, I shall bring the recommendation of my noble friend to the attention of my right honourable friend the Secretary of State.
The Earl of SELKIRK: My Lords, do these people lose their overseas allowance?

1611
What allowances, if any, do they get if they stay in this country?
Lord WINTERBOTTOM: My Lords, separation allowance is paid when a soldier is on an emergency tour in Northern Ireland, whether his family is in Germany or the United Kingdom. For families entitled to local overseas allowance, it ceases if the wife's absence is extended beyond 30 days.
Lord SEGAL: My Lords, in view of the fact that many of our serving men are in Northern Ireland for a continuous period of at least four months, could not a longer period than 30 days be allowed in certain deserving cases?
Lord WINTERBOTTOM: My Lords, I cannot answer that question, but I shall bring it to the attention of the Secretary of State.

CHILDREN ACT 1975: S.65
2.45 p.m.
Baroness MACLEOD of BORVE Baroness MACLEOD of BORVE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when they intend to implement Section 65 of the Children Act 1975.
Lord WELLS-PESTELL: My Lords, this provision came into force on 26th November 1976. As the noble Baroness will know, it enables a court to order legal aid for parents where a separation order has been made under Section 32A of the Children and Young Persons Act 1969. A separation order may now be made in unopposed proceedings for the discharge of a care or supervision order.
Baroness MACLEOD of BORVE: My Lords, I thank the noble Lord for his reply. My Question is really directed towards granting custody of a child to a local authority in care proceedings in court. Is the noble Lord aware that the child and the local authority are now by law enabled to be represented in court, but that the parents who are opposing the application of the local authority are not granted legal aid?
Lord WELLS-PESTELL: My Lords, as I understand the Act, what it was really designed to do was to prevent the situation which arose in the Maria Colwell case. In that case, the girl was in the care of the local authority and the mother wanted to have the child back. The result was that the child was returned to her, because, if my memory serves me correctly, the local authority was not opposed to the child going back. The whole purpose of the section which the noble Baroness is talking about is that, when that situation arises, the court shall have power to grant a legal representative to act for the child, to see whether or not it is desirable that the child should go back to the parents. As the noble Baroness knows, that section of the Act has not yet been implemented.
Baroness MACLEOD of BORVE: My Lords, I thank the noble Lord for that further reply. It is specifically in the case where a local authority is requiring to take a child into its care, and where the parents are opposed to that application, that I want this part of the Act to be implemented. Can the noble Lord tell me when this part of the Act will be implemented?
Lord WELLS-PESTELL: My Lords, I cannot tell the noble Baroness when it will be implemented, and at this moment I do not think anybody else can do so.
Lord HAILSHAM of SAINT MARYLEBONE: But, my Lords, what is holding up the implementation of this section? Am I not right in thinking that it would require a very small infrastructure, and practically no additional expense? Can the noble Lord say why it has not been implemented and what is holding it up?
Lord WELLS-PESTELL: My Lords, my understanding is that it is a question of expense. The legal representation which the parents would have would mean further responsibility and work for the local authority and, at the moment, that is something which they cannot undertake.

AIRPORT LANDING SYSTEMS
2.49 p.m.
The Earl of KINNOULL The Earl of KINNOULL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the recent decision announced in America to adopt internationally the American landing system at airports is binding on the United Kingdom and European airports in view of the technical doubts about which system to adopt; and whether information as to names of the countries voting and which way they voted is available.
Baroness STEDMAN: My Lords, the Question refers to a recommendation by the International Civil Aviation Organisation's All Weather Operations Division meeting last week in Montreal. It was that a new precision approach and landing guidance system for the world's airports should be based on a time-referenced scanning beam or TRSB system. This system has been developed by the United States. The United Kingdom has consistently supported the Doppler Microwave Landing System or DMLS, which we believe is infinitely superior. The decision is subject to ratification by the Council of the International Civil Aviation Organisation. The decision is not binding on member States, but the interests of international civil aviation will be best served by the universal adoption of an internationally agreed system. The decision was taken by secret ballot.
The Earl of KINNOULL: My Lords, while thanking the noble Baroness for that fairly full reply and while I am sure that the House shares her disappointment that the American system was adopted, may I ask whether she could say if that system is now fully developed and tested?
Baroness STEDMAN: My Lords, my information is that the American system consists of several experiments. There now has to be a further period of experiment and research over future years in order to adapt this system to the one which is to be used. It is not anticipated that the new system will come into force before 1995, and it is hoped that the British industry will be playing quite a big part in the development of the system. At this point it is the principle of the system which has been agreed.
Lord PAGET of NORTHAMPTON: My Lords, can the noble Baroness tell
1614
us whether she has any information as to who managed this rather surprising vote on behalf of the Americans, and also whether she has any information as to whether it was Lackheeds who masterminded, from the American point of view, this highly successful operation?
Baroness STEDMAN: My Lords, I have no information, other than that 39 countries voted for, 24 countries voted against, while there were eight abstentions. Therefore it was not a close result, although for the United Kingdom it was a disappointing one.
The Earl of KINNOULL: My Lords, if the American equipment is still experimental, which is the word which the noble Baroness used, was not the decision taken a little early, in view of its importance?
Baroness STEDMAN: My Lords, I understand that tests were carried out in the full knowledge and in the sight of all of the countries who were concerned with it, and that they were satisfied when they took their vote after their long discussions. They were very long discussions and I guess that at times they were perhaps acrimonious. The decision has now been made and it will be ratified, or otherwise, when the full committee meets.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, perhaps it is an embarrassing question to ask the Government, but is the noble Baroness aware that a great number of people are extremely concerned about the methods which American industry sometimes uses to obtain orders? Are the Government altogether satisfied that the methods employed by the American industry were such as would not merit investigation?
Baroness STEDMAN: My Lords, a Congressional sub-committee inquired into the conduct of the debate. It is not for me to comment upon whether another country's ways of doing things are proper. All I can say is that, so far as the United Kingdom is concerned, we carried out everything in the proper way. We hoped to influence all of the other countries, but we were unsuccessful.
Lord BOYD-CARPENTER: My Lords, can the noble Baroness confirm that the wholly objective advice of the technical experts which was available to Her Majesty's Government clearly indicates that the Doppler system is technically superior? In those circumstances, can one be wholly free of the suspicion that economic and industrial considerations rather than a completely single-minded desire to provide the world with the best system affected the decision of the technical committee?
Baroness STEDMAN: My Lords, I think it is safe to say that, so far as this country is concerned, all of our technical advice pointed to the view that ours was the best system. We do not deviate from that opinion now. However, the fact remains that the TRSB, the American system, was the one which gained support at the meeting.
Lord WYNNE-JONES: My Lords, in view of the fact that this system will not be introduced for a period of at least 15 years, may I ask my noble friend whether or not it is extraordinary that a decision should be reached at a time when it is not possible to say which will prove to be the best system? Therefore, would it not be sensible for the matter to be kept open? Is it possible for Her Majesty's Government to do something to ensure that the matter remains open until the systems have been fully tested?
Baroness STEDMAN: My Lords, all that the decision has done is to determine the type of system which will be used. In fairness to all of the airports, we have to give a time during which they know that their present system will still be able to be worked and be used. We cannot leave them in a state of chaos. Therefore 1995 has been fixed as the date by which we hope that the new system will be introduced. Having fixed the type of system there will be, we are satisfied that the world's electronic industries will be competing for the manufacture and installation of the equipment. Because of the record of the British electronics industry, I have no doubt that we shall look forward to gaining quite considerable contracts when that development goes ahead.
Lord CARRINGTON: My Lords, I sympathise with the noble Baroness on
1616
this Question, but could she tell the House how a technical judgment can be made between a system which is developed and a system which is not?
Baroness STEDMAN: My Lords, I think that the United States would claim that their system is developed, although it has been developed in parts instead of as a whole. It is now a question of amalgamating the parts into one whole. There were long discussions about it in meetings, and the vote was taken. We lost that vote and we just have to accept it.
The Earl of SELKIRK: My Lords, can the noble Baroness say whether the members of the enlarged European Community presented a united front on this matter?
Baroness STEDMAN: No, my Lords; it was not possible to mount a united European policy because we were not the only EEC country which sought permission and approval for a system to be developed.
Lord BROCKWAY: My Lords, since there is considerable evidence of American corporation pressure being used to bring about this result, may I ask the Minister whether it is possible to publish in the Official Report the names of those Governments which supported the majority view, those which opposed and those which abstained?
Baroness STEDMAN: No, my Lords; as I said earlier, there was a secret ballot. While I accept that it was a robust contest —that is perhaps the easiest way to describe it—there were many controversial features in the debate, including the use of computer simulations which were not fully validated against the system which we were proposing. However, the final decision was taken on a secret ballot in order to ensure a free vote. I hope that with our democtatic system we can accept a secret ballot.
Lord HARMAR-NICHOLLS: My Lords, is the noble Baroness aware, secret vote or no secret vote, that this is another case where it pays to be considered to be a significant Power, and that the sooner this country becomes significant again in political terms it will reflect some advantage on our industry and our general technical development?
Baroness STEDMAN: My Lords, I would not accept that argument. The system which we put forward was at a much more advanced stage than was the American development that was put forward. We owe a considerable debt to our electronics industry for the way in which they have proceeded. Regrettably the vote went against us. We cannot win all the time, much as we should like to do so.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, we have an enormous programme in front of us, and I am about to announce that there is to be a Statement as well. Feeling runs very high on this subject, understandably, but we had better leave it now.

ARMED FORCES: PAY REVIEW
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, with the leave of the House, my noble friend the Leader of the House will, at a convenient moment after 3.30 this afternoon, repeat a Statement on the review of Armed Forces pay.

FILMS BILL [H.L.]
Lord BTRKETT: My Lords, I beg to introduce a Bill to amend Section 6 of the Films Act 1960. I beg to move that this Bill be read a first time.
Moved, That the Bill be now read la.— (Lord Birkett.)
On Question, Bill read la, and to be printed.

SHIPBUILDING (REDUNDANCY PAYMENTS) BILL
Read 3a, with the Amendments, and passed, and returned to the Commons.

SCOTLAND BILL
3 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.
1618
Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[Lord GREENWOOD OF ROSSENDALE in the Chair.]
Clause 34 [Potter to make changes in law consequential on Scottish Assembly Acts]:
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 128:
Page 16, line 17, leave out ("or expedient").
The noble Earl said: This Amendment relates to Clause 34, upon which there was a discussion in your Lordships' Committee last night. Taking the matter briefly, Clause 34 gives the Government of the day powers to make changes in the law of any part of the United Kingdom consequential to a provision made by or under a Scottish Assembly Act. I suggest that this is a fairly novel way of changing the law in this country, that is to say by Order in Council in this manner, although I think it is true to say that similar provisions appear in the Northern Ireland Constitution Act and the Local Government (Scotland) Act, both of 1973, to name but two. However, I do not think the cases are exactly parallel and there is the further matter that, although the system as proposed in this Bill is safeguarded to some extent by the fact that the order has to be approved by the Affirmative Resolution procedure, as is the invariable case with these orders they can either be approved or not approved but they cannot be amended.
So far as the Amendment is concerned your Lordships will see that it seeks to delete the words "or expedient" from subsection (1). The first question I wish to put to the noble and learned Lord who I anticipate will reply to the debate is this: What circumstances does he foresee which will lead to the Government wishing in the future to make changes in the law by Order in Council under this procedure? I will say at once that there was a heated debate in the other place on a subject which was not entirely similar to this. Nevertheless, I hope that by now the noble and learned Lord will be in a position to give illustrations or at

1619
any rate to describe the sort of Acts which will make the Government feel that this provision should be used in certain circumstances.
So far as the words "necessary or expedient" are concerned, I wish to say only that in the Local Government (Scotland) Act I think the words necessary or proper "are used, and that seems to me to be a better way of describing it. If the Amendment were approved I suppose it would infinitesimally fetter the discretion of the Government in that an order could only be placed for Affirmative Resolution if what it did was necessary rather than convenient. I beg to move.
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey): I think it would be best to begin by reminding the Committee that we had a discussion on a related matter when we discussed Schedule 2, and in particular paragraph 8 of that Schedule. Your Lordships will recall that following that discussion I undertook to look again at the wording of paragraph 8, which was similar in some respects to this wording although the context is rather different, and as I intimated last night in the course of another debate, we are making progress with our further look at that wording and we hope to bring forward a satisfactory solution. That has some bearing upon this because in order to answer the noble Earl's question I have to turn to the circumstances in which the Government envisage that Clause 34 might be used.
I explained this in the earlier debate, but perhaps I may do so shortly again. The exercise of ordinary legislative competence by the Scottish Assembly will inevitably entail consequential amendment to legislation about non-devolved matters. But we accept that particularly in the other place there was some alarm about the apparent possibilities of Clause 34. The Government have looked at the matter again closely but remain of the view that Clause 34 is in a well precedented and acceptable form.
The wording of the clause is very limited indeed. The principal limitation of the power conferred by Clause 34 lies in the legislative competence of the Assembly itself. Far from having unrestricted com-
1620
petence, the Assembly can only legislate within a very precise definition of devolved matters and beyond this, to a limited extent, allowed as the Bill now stands by paragraph 8 of Schedule 2. This restriction, taken with the provisions of paragraph 7 of that same Schedule, which prevent an Assembly Act from amending the Scotland Act, makes it apparent that the Assembly could in no way legislate to affect the main constitutional provisions on which the devolution settlement is constructed. Since an Assembly Act is thus expressly prevented from amending the Scotland Act, consequential changes in United Kingdom law—if the noble Earl, Lord Selkirk, will forgive me for using that expression as a form of shorthand—would arise from the need, for example, to substitute statutory references in Part III of Schedule 10 or to insert or amend the names of Scottish bodies. Because the competence of the Assembly is limited in this way it must follow that the ambit of Clause 34 powers which are expressed to be consequential—and I emphasise the word "consequential"— on provisions made by an Assembly Act, must be even more restricted.
I will now turn to the wording. The Amendment would cut back the powers of Clause 34 by preventing provision which is expedient. The only test left then would be that of necessity and that could be a very high and difficult hurdle to cross on its own. As the noble Earl pointed out, the term "necessary or expedient" is not wholly unprecedented. It is a precedented provision for making a multitude of Amendments to United Kingdom legislation which the Bill could not encompass without growing to enormous size. As he has indicated, it has a respectable ancestry to be found in Section 254 of the Local Government Act of 1972. That Act empowered a Minister to make such consequential provision as appeared to him to be "necessary or proper", and I suggest that the difference in wording is not of any great significance.
Section 254 of the 1972 Act referred to the power of the Minister to make such consequential provisions as appear to him to be "necessary or proper" in consequence of the Act or in giving full effect to it. The same words are to be found in the corresponding provision; namely,

1621
Section 215 of the Local Government (Scotland) Act 1973. Again, the Northern Ireland Constitution Act 1973, which the noble Earl mentioned and indeed which I quoted in the Official Report at col. 1030, contains similar wording. The breadth of those powers seems to be indistinguishable from the breadth of the powers now sought and there is no evidence that they were criticised as being too wide at the time. Indeed, if any narrower powers had been provided they could have been criticised as being inadequate for the purpose. Breadth is particularly necessary in the present context when the operation is so very much wider than, say, local government reorganisation and this particular operation in which we are engaged, namely devolution, lacks any precedent other than the Northern Ireland precedent in 1973.
So we regard Clause 34 as being an essential provision to enable any necessary tidying up to be done in consequence of the passing of Scottish Assembly Acts. If the ability to do this were curtailed in the way suggested by the Amendment a good deal of Parliamentary time could be spent discussing minor consequential matters for which the Scottish Assembly was primarily responsible.
I would remind your Lordships that there is the Affirmative Resolution procedure. I accept the general observation about it which the noble Earl has made, but in this kind of case where what we should be engaged upon would be simply a tidying up matter it is difficult to see that any amendment to the order would ordinarily be expected. In relation to the word itself, I would remind your Lordships that when the use of the same word "expedient" was criticised in its context of paragraph 8 of Schedule 2 by, among others, the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Diplock, they said that in that context the word was used objectively and it was not a suitable word for a court to construe, and they desiderated using it in a context where there was an element of political judgment and an element of subjective judgment.
That is the context of Clause 34. 1 really cannot, in their absence, say what they would say, but it would appear from what they said on that occasion—in column 1023 for the noble and learned
1622
Lord, Lord Diplock, and column 1030 for the noble and learned Viscount, Lord Dilhorne—that they would not criticise the use of the word "expedient" in its context in Clause 34. 1 hope that, in the light of that explanation, the noble Earl will not wish to press this Amendment.
Lord HARMAR-NICHOLLS: Did I understand the noble and learned Lord to say that there were precedents for the word "expedient" or did he say it was necessary or proper and that "proper" in that sense was the same as "expedient"? If that is what he was saying I cannot accept that. "Expedient" has a meaning of its own; it is rather loose. It can mean what you intend it to mean in many cases. would imagine that that was why the noble and learned Lords questioned it at an earlier stage. I should not have thought that the altered circumstances surrounding this clause in any way weakened the arguments which they put forward then. "Necessary" is definable in law; that has been laid down. "Expedient" is not, and I doubt if "proper" is either.
I should have thought that this Bill was not one in which to experiment or to start giving legal meanings to words that have not had legal meanings before. If it is that we want "expedient" to have a legal meaning, let us have it properly examined and defined in an area which is perhaps more identifiable than this Bill can be. The question I am putting to the noble and learned Lord is this: did he say that in fact in Bills similar to this "necessary or expedient" had been accepted and that this therefore seems to have worked in practice, or was he saying that in previous Bills the words are "necessary or proper" and was he then arguing that "proper" was the same as "expedient"? If that was his argument, I do not think I can accept that, and nor, I imagine, would the noble and learned Lords, who are very learned in definitions in law.
Lord WILSON of LANGSIDE: wonder whether I may follow up Lord Harmar-Nicholls' point by asking the noble and learned Lord what he takes to be the meaning in this context of the word "expedient". It has been said that it has several meanings, but one which immediately comes to mind is something which is politic or useful but not necessarily

1623
right or just. It seems to me that a provision which on the face of it extends to an extraordinary extent, not, of course, the power of the Assembly, but the power of what can be done by Order in Council, and which is an extraordinary extension of administrative power, should not be left in this uncertain state. Perhaps the noble and learned Lord can enlighten us on that.
Lord HAILSHAM of SAINT MARYLEBONE: May I make a further comment, which I hope will not delay the Committee very long. I reflected about it on Schedule 2, and I am reflecting about it still. I doubt whether there is any difference in this context between "necessary" and "expedient", because I cannot conceive of a thing being necessary which was not also expedient, and in this context I cannot conceive of anything being expedient which was not expedient because it was necessary. Having said that, I wish to draw a general moral. The verbosity of the Parliamentary draftsmen is almost that of the late Archbishop Cranmer, who used to dissemble and cloak things from the face of Almighty God. They will always use two words where one will do. I must add that every time two words are used when one will do the poor Houses of Parliament in Committee have to spend about a quarter of an hour discussing what is the difference between them.
Lord McCLUSKEY: If I may, I shall remind the noble and learned Lord of what he said on the last occasion—and I quote from column 1034:
"So that, if the word 'expedient' is required, I would suggest to the noble and learned Lord that some machinery should he discovered to make the Executive responsible for deciding what is expedient, so that they may be answerable to Parliament, and not the courts".—[Official Report, 18/4/78, col. 1034.]
I think the noble and learned Lord will recognise that, at least in Clause 34, that criticism which fell to be levelled at Schedule 2 does not fall to be levelled here.
To take the point raised by the noble and learned Lord, Lord Wilson of Lang-side, he asked me to define the word "expedient". I think the correct answer is that one should not take that one word; one must look at it in its context. The wording is:
1624
"necessary or expedient in consequence of any provision made by or under any Scottish Assembly Act".
In that context, I would suggest that the word "expedient" has its normal meaning in this kind of context, to which I shall come in a moment. It simply means, in relation to a provision, a provision which expedes.
The Earl of ONSLOW: Is "expedes" in the dictionary?
Lord McCLUSKEY: Look it up. If it is not in the noble Earl's dictionary, it is certainly in any dictionary that I would consult. Accordingly, looking at it in its context, one would look at the provision which it is proposed to put in the Order in Council and say, "This is one which facilitates the putting into operation of the provision contained in the Scottish Assembly Act and is a consequence of it". That would be the ordinary meaning, in my submission.
I was asked by the noble Lord, Lord Harmar-Nicholls, a question which he asked me the last time we came to this. I shall endeavour, in order to be consistent, to give the same answer. On that occasion I quoted the wording of Section 5(7) of the Northern Ireland Constitution Act 1973, introduced by a previous Government, where, in a context similar to this—namely, where the judgement was to be made by the Secretary of State—the wording was:
"For the purposes of this section, a provision is ancillary to other provisions if it is a provision which is necessary or expedient for making those other provisions effective".
So it is very similar. The noble Earl and I both referred to the Local Government Act. Curiously, when I was looking through Schedule 4 yesterday, I found the Public Health (Scotland) Act 1945, and I find that that Act, which was passed in December 1945, contained in Section 1 —one of the provisions referred to in Schedule 4—the following provision, which I read short, but I hope not unfairly:
"the Secretary of State may … make regulations …
(c) for preventing the spread of infection by means of any vessel or aircraft leaving any place, so far as may be necessary or expedient for the purpose of carrying out any treaty, convention, arrangement or engagement with any other country ".
So I think it has a respectable and ancient ancestry. I would defend it upon all these grounds. I hope I have answered

1625
all the questions, and I would hope that the Amendment will now be withdrawn.
The Earl of MANSFIELD: There is nothing like a good discussion on semantics to excite your Lordships. I do not intend to prolong the agony any further, except to ask that, if the Government—should we be so unfortunate as to see them in power for much longer—make up any more of these Bills, the word "expedient" should be left out as being surplussage, or alternatively the word "proper" put in so that everybody understands what it means. But, for the present purpose, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 34 agreed to.
Clause 35 [Power to move rejection of certain Assembly Bills]:
3.20 p.m.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 129:
Page 16, line 24, after ("State") insert ("in the case of any Bill passed by the Assembly which does not fall within section 19(1)(c) or 19(4) of this Act").
The noble Earl saidWe now pass to a matter which is of very much greater consequence, both in the context of this Bill and much more especially to the citizens of the United Kingdom if this Bill should become an Act and pass into law. I suggest that we deal with Amendments Nos. 129 to 134 in one debate. I shall speak to all my Amendments in one speech because it seems to me that different considerations arise on Amendment No. 253, which no doubt the noble and learned Lord will move. Further and still different considerations will subsist when my noble friend Lord Ferrers moves Amendment No. 330. It may be convenient if we consider Clause 35(1) and the Amendments thereto at this time.
The drafting of the Amendments is perhaps a little complicated. It may be for the convenience of the Committee if I read how the clause would read if the Amendments were accepted, because then, in my submission, the whole passage falls into place. I shall then try to explain
1626
why it came about that my noble friend and I tabled them. Clause 35(1) will read:
"If it appears to the Secretary of State, in the case of any Bill passed by the Assembly which does not fall within Section 19(1)(b) or 19(4) of this Act that the Bill contains any provision which would affect directly or indirectly any reserve matter, or that the enactment of that provision would not be in the public interest, he shall lay the Bill before Parliament with …"
Then it goes on. I shall come back to that point.
The first part—this is the first Amendment—writes into the clause that, in effect, the first matter that the Secretary of State must take cognisance of is whether the Bill passed by the Assembly falls into Clause 19(1)(b) or Clause 19(4) of the Bill as it stands unamended. One can see the point of that. If it falls into Clause 19(1)(b), then the Secretary of State will have already formed the opinion that the Bill is not compatible with Community obligations or any other international obligations of the United Kingdom, or that it provides for matters which are, or ought to be, provided for in legislation passed by Parliament and implementing any such obligation. So the Bill will have failed to surmount that preliminary hurdle.
Turning to Clause 19(4), the Bill will have failed at the second hurdle, because the Judicial Committee of the Privy Council will have decided that the Bill is not within the legislative competence of the Assembly. Therefore we are talking in this clause, as will be agreed, about Scottish Assembly Bills which have got through that first test; that is, whether they come within the ambit of Clause 19.
We now come to the next part of this subsection—the fact that a Bill contains any provision which would affect, directly or indirectly, any reserve matter. That is perfectly easy to comprehend. This clause is a safety net. It comes in, as it were, after the Secretary of State has considered any other reserve power that he may have. What we have done in Amendment No. 130 is to change the emphasis. As the Bill stands, the Secretary of State, first, must determine that the Bill, as passed by the Assembly, contains a provision which would, or might, affect a reserve matter. Then, under (b), he has to go on and say not only that he is satisfied, so to speak, on (a) but that the enactment of that provision would not be

1627
in the public interest. He could, as the clause stands, say that the Bill offends against Clause 35(1)(a), but because it was in the public interest he could, as it were, let it go through at that stage.
Amendment No. 130 gives the Secretary of State—I want to make no bones about this— a new and much more sweeping reserve power, because it says that not only can he act if he is of the opinion that the Bill offends under (a) but that he also must—not may or shall—act if he is of the opinion that the provision of the enactment would not be in the public interest.
This merits a debate almost by itself. It may well be—and we are only peering into the future at this moment—that the Scottish Assembly will act in a way that will be entirely constitutional, sensible, and beneficial according to its lights, and for and in the best interests of the citizens of Scotland and of the United Kingdom. We must say to ourselves that there could be circumstances when the Assembly will not so act; it may well act in a way which would not bring the Bill that it seeks to pass before the Judicial Committee of the Privy Council, but which is nevertheless not in the public interest.
One may scratch around and find a number of examples which, in effect, are matters which are purely devolved under the terms of Schedule 10 but which nevertheless might be, in the opinion of the Secretary of State and indeed of Parliament, not in the public interest. One example that immediately springs to mind is if the Assembly proposed a far-reaching and swingeing change in the criminal law. We have only to think of what is happening at the moment in Europe in relation to the Isle of Man and its habit of birching young men in certain circumstances.
I do not know whether, for instance, the Scottish Assembly would reintroduce corporal punishment. I think that it certainly would have the power to do so, unless I am mistaken. I am sure that the noble and learned Lord will pull me up if I am wrong. I think that the Scottish Assembly would be quite entitled to restore, as I said on Second Reading, corporal punishment or capital punish-
1628
meat. That is a situation which Parliament at Westminster might well find was intolerable. I do not know. It might, I suppose, be held to be against our international obligations, but I think that is rather far-fetched. What is to happen? What is the Secretary of State to do about that? When I introduced one Amendment in this Committee some days ago, I mentioned the word "ping-pone". I was ill-advised to use that phrase. It resulted in a debate which had little to do with the Amendment but a lot to do with the powers and duties of the respective legislatures.
This is what I foresee. If there is no provision such as is contained in Clause 35, that would be the only action that the United Kingdom Parliament could take. If we continue to use my example—it may not be a very good one, but it is the only one I can think of on my feet—the United Kingdom Parliament could say, "No, you will not restore corporal punishment: notwithstanding that it is a devolved matter, the sovereignty of Westminster is such that you will not restore it." The result of that would be that either the Scottish Assembly would have, as it were, to "re-pass" its Bill, which again it would be entitled to do, or it would accept the position.
In either case, it would not be satisfactory and it would not be for good relations between the two legislatures. In those circumstances, it seems that something like Clause 35 would be beneficial but I think it would be expedient—and I use the word—for the Secretary of State to be able to move in a situation like this although the Bill passed by the Assembly is perfectly proper in that it does not affect a reserved matter. That is the second limb of the argument.
The Third Amendment which is of consequence is No. 132, where the word "may" in line 30 is deleted and for that is substituted the word "shall". We say here that, if the situation is such that the Secretary of State is satisfied in the way I have previously outlined, it is not the case that he,
"may lay the Bill before Parliament",
but,
"he shall lay the Bill before Parliament",
for its consideration. I think that is something which may well commend

1629
itself to the Committee. It takes away the discretion and it might take the political heat out of the situation because it might well be that the Secretary of State would consider the Bill was odious —and I use that word in its political sense—because, politically speaking, he did not want to lay it before Parliament. We have there taken away the discretion of the Secretary of State.
Then we come to the final Amendment. It enjoins the Secretary of State to,
"lay the Bill before Parliament together with a statement that in his opinion it ought not to be submitted to Her Majesty in Council or
(b) a statement of the amendments necessary in his opinion to correct the defect in the Bill".
It might be that one had a large Bill, perhaps a Criminal Justice Bill. Many of the provisions might be sensible and would not cause any offence—if I may use the word—to Her Majesty's Government at Westminster. There might be only one or two provisions, clauses or even subsections in the Bill which were complained about. In those circumstances, it seemed to us that the last part of Amendment No. 134 would, as it were, enable the Scottish Assembly to cure the defect comparatively quickly—and, dare I say, comparatively painlessly—without having, for the purposes of its Bill, to go back to square one.
I have spent a little time in outlining Amendments Nos. 129 to 134 which my noble friend and I have tabled. Of course, there are a great many other arguments to do with this clause—for example, whether there should be a clause at all—but I have tried to confine myself to this first part of the argument which seems to fall neatly into these Amendments. I beg to move.
The PRINCIPAL DEPUTY CHAIRMAN of COMMITTEES (Lord Greenwood of Rossendale): It may be for the convenience of your Lordships if we debate with this Amendment Amendments Nos. 130 to 134, as suggested by the noble Lord.
3.34 p.m.
Lord BROWN: I have not been able to be present at all stages of the Committee debate, but it struck me that a number of Amendments moved have displayed a
1630
rather profound lack of confidence in the future behaviour of the Assembly if and when it is set up. It strikes me that these are in the form of self-fulfilling prophecies. If in a business organisation you doubt the sense of responsibility of your employees and design rules and procedures based on that lack of confidence, some psychologists have noted that you probably generate the very behaviour for which you are legislating. A lot of the Amendments seem to have this character.
I should like to ask the mover of the Amendment a very direct question—not as an attack on the Amendment but because I want to understand it better. Would it not in fact be a result of this Amendment that the Secretary of State would be placed in a position where, on the basis of his own opinion, he could override any legislative act of the Assembly or seek to have it overridden by Parliament? Is that not a straight result of this series of Amendments?
The Earl of MANSFIELD: I think the answer is yes and no; no, because he could not, and yes because in any event he could since this Parliament is always sovereign. It is just shortening the procedure.
Lord BROWN: May I put it another way? Is it not a fact that if in the opinion of the Secretary of State something as passed by the Assembly is not appropriate, he can at least insist that Parliament itself looks at it, and whether or not the legislative act of the Assembly invaded the reserved area Parliament would then have the right to take away from the Assembly the legislative right which other clauses of the Bill have apparently given?
The Earl of MANSFIELD: Yes. That is putting the matter much too baldly, which I am sure that the noble Lord would not seek to do. It would be quite an unfair expression of how the Secretary of State would act, but within those terms 1 agree with the noble Lord.
Lord MOTTISTONE: I should like to clarify one small point in the Amendment. It seems to me that the noble Earl is missing out the subsection about enactment not being in the public interest.

1631
I think I heard him say something about it, but I did not hear it clearly.
The Earl of MANSFIELD: I really cannot repeat myself. I hope I am not being offensive to my noble friend. He could look at it in Hansard tomorrow. I am beginning to regret that I tried to save the time of the Committee by, as it were, moving all these Amendments en bloc. I think I have been rather foolish.
Lord DRUMALBYN: May I ask a question of the noble and learned Lord as to the construction that would be put on the words,
"the enactment of that provision would not be in the public interest"?
As I understand it the change of the word "and" to "or" might make a difference in the construction of what is in the public interest. In other words, it is, so to speak, changing the venue from Scotland alone to the United Kingdom because the Secretary of State for Scotland is the United Kingdom Minister.
Lord HARMAR-NICHOLLS: I do not think the comments of the noble Lord, Lord Brown, really reflected what would be the view of businessmen. The point he put to my noble friend was that if you are giving the impression that the Assembly would not be responsible and would not do things objectively and impartially, it might well undermine its powers. He said that in business you would not do that because it would foul the atmosphere. But in business we do do that, and the noble Lord knows it. When one puts conditions down an accountant has to check, and somebody else has to check on that accountant. You have to set down your framework on the basis that there are cheats about.
If people are handling money in my business, then I want to put them in a position where they can feel that the framework that I have created is safe enough to prevent them from being falsely accused at any time. Therefore, I think that I understand what the noble Lord, Lord Brown, had in mind, but it is not true that businessmen do not put up a framework because the people who have to work within that framework may feel insulted.
1632
In this particular clause we come across something that is quite vital. The Assembly may pass laws or commit acts which will affect not only Scotland, which is the object of the Bill, but the United Kingdom. In order to provide protection as regards them being able to alter the laws of the United Kingdom, this Amendment is being inserted as a safeguard.
The words that are contained in the Bill at present are not all that bad. I read with great care the debate that took place on this matter in the other place. However, I think that the alternative words which have been put forward by my noble friend are better, set the case more clearly and make it easier for the provision to be administered later.
The reason why I prefer the clear words of my noble friend to the ones contained in the Bill is that the safeguard is supposed to be that regulations must be laid and affirmed. Those of us who have had some experience as regards the affirmation of a regulation know that that puts too much power in the hands of the Whips. They are able to get things through without the matter being properly discussed and without being able to amend it.
Therefore, I rose only because 1 should not like to have it on record that the noble Lord, Lord Brown, was reflecting the reaction of normal business houses as I know them, because frankly I do not think that that is so. In my view, the words of my noble friend are clearer, better and more likely to give satisfaction when they are passing matters which are not within their full power—reserve matters, which affect the United Kingdom. It would be better if the words suggested by my noble friend were included in the Bill.
Lord STRABOLGI: My Lords, in order to hear the Statement at present being made in another place, I beg to move that the House do now resume.
Moved, accordingly, and, on question, Motion agreed to.
House resumed.

ARMED FORCES: PAY REVIEW
3.42 p.m.
The LORD PRIVY SEAL (Lord Peart): My Lords, with the leave of the

1633
House, I shall now repeat a Statement being made in another place by my right honourable friend the Prime Minister. The Statement is as follows:
"With permission, Mr. Speaker, I will make a Statement about the pay of the Armed Services.
"The 7th Report of the Armed Forces' Pay Review Body is published today and copies are available in the Vote Office. The Government are most grateful to the Review Body for all its work in producing this report.
"The Review Body has concluded that the pay of the Armed Forces has fallen seriously behind in the period since April 1975 and the Report states that increases in pay of between 19 per cent. and 38 per cent.—averaging 32 per cent. —are now required to restore the full military salary. It recommends that the full military salary should be restored at the earliest possible date, but it recognises the Government's expectation that increases which exceed the guidelines would need to be staged. It has recommended that this staging should be completed not later than 1st April 1980.
"The Government accept the Review Body's recommendations on the levels of the military salary. These will be fully implemented to the current levels for 1st April 1980 in two approximately equal stages after this year and, as the Review Body recommends, the Government give a firm commitment to that effect.
"In considering the levels of the military salary, the Review Body has had regard to the element which recognises the balance of disadvantage of Service life by comparison with civil life, known in the Services as the X Factor '; it has also taken into account allowances and charges.
"The Government have reached conclusions on these various elements in the light of the Review Body's conclusions and the following arrangements will apply for the year from 1st April 1978. There will be an increase of 10 per cent. in the military salary together with an increase in the X factor within the amount recommended by the Review Body, which
1634
will add 3 per cent. in total. The extent to which these percentages will be implemented will vary from rank to rank as differentials are restored. In addition, the rate of Northern Ireland pay will be doubled to £1 per day. There will he certain changes in allowances and a standstill in charges for accommodation pending a further examination by the Review Body. These together will add a further 1 per cent. to the net bill.
"My right honourable Friend the Secretary of State for Defence is arranging for a summary of the new pay scales to be placed in the Vote Office.
"These arrangements now secure for the Armed Forces a firm assurance about their future conditions of service and will meet, 1 believe, the view expressed by the Review Body that their particular problems should be recognised.
"The men and women who serve in the Forces have many diverse and difficult roles, and they have undertaken a number of additional tasks, some of them very dangerous as in Northern Ireland. The country is grateful to them and I should like to pay tribute once again to the professionalism and dedication with which they carry out their many responsibilities."
My Lords, that concludes the Statement.
3.47 p.m.
Lord STRATHCONA and MOUNT ROYAL: My Lords, good manners and the customs of this House compel me to thank the noble Lord for repeating the Statement. I think that the only other kind thing that I can say is that the Statement at least fulfils one promise made during the wind-up of our debate on Thursday last.
In view—and I am sorry to say this—of the grave discourtesy to this House of arranging a defence debate when this Statement was clearly imminent within days, I hope that the Leader of the House will also feel able to undertake to fulfil an implied promise made by the noble Lord, Lord Winterbottom, in the wind-up last Thursday when he said:

1635
"The convention is, as far as I know it, that the Commons first of all debate the White Paper and, about a week later, we do the same". —[Official Report, 20/4/78; col. 1420.)
I think that that is what the House would expect.
I can certainly welcome one statement which I found in the five-minute perusal that I made of the White Paper, because the Review Body says on page 31:
"In our view it is essential and equitable to ensure that Servicemen are no less favourably treated in the current cycle of pay restraint measures than other members of the community.".
As for the Statement itself, welcome though some of the crumbs are, I must ask the Government: do they seriously imagine that the promise of jam tomorrow will do anything to staunch the flow of personnel from the Forces? On Thursday last, I said that death by arterial bleeding is infinitely faster than death by starvation, and more irreversible. I should like to repeat that again today. The Government say that payments will be staged. I think that perhaps "stage-managed" would be a better expression to use about them. Will not this treatment call into question and undermine the vital confidence of the Forces in the value of the Armed Forces' Pay Review Body itself?—indeed, it is clearly worried about this as can be seen from the opening paragraph of the White Paper.
It is all very well for the Government to mouth platitudes about recognising particular problems and expressing the country's gratitude, but that does not pay the bills. I can only say that the Statement leaves us, on this side of the House, with a profound sense of alarm and despondency, allied to a feeling of shame that Parliament is failing those from whom it demands both devotion and trust.
Lord MACKIE of BENSHIE: My Lords, there are one or two significant aspects to the Statement. It is rather unfortunate that the Statement says that between April 1975 and the present day the Forces have averaged 32 per cent. lag behind average pay in civilian life and that this is not to be corrected until 1980. I am still very doubtful whether 14 per cent. now will stem the disastrous flow of very skilled people from the Services. As I said in the debate last week, the rise in the cost of the various outgoings of
1636
the Forces, particularly rents, has been disastrous. We welcome the fact that the Statement said that, at any rate for now, the cost of accommodation is to be frozen; I have not seen the White Paper, but I should have thought that it needed to be reduced.
I should like to ask the noble Lord the Leader of the House whether any effort is to be made to retain in the special categories the highly special skills which many members of the Forces have and which are in great demand outside the Forces. Unless that is done, the drain of these essential middle-rank people may well continue and get worse. It also appears to me that there should be some back-dating, although I see no mention of this in the Statement. Perhaps the noble Lord the Leader of the House can tell us whether that is so.
Lastly, we have had this enormously serious drain from the Services. There has been a lag of 32 per cent. behind average salaries, and we are in a position which the Government recognise as serious. I do not think that any steps can be taken to stop this unless the Government agree to index Forces pay so that this does not happen again. Certainly, the highly-skilled people who are now leaving all three Services will not stay unless some definite promise is given that this situation will not occur again in five or 10 years' time, when it will be too late for them to start a new career.
Lord PEART: My Lords, I welcome the constructive approach of the Liberal Party. The noble Lord, Lord Mackie of Benshie, referred to flying pay in last week's debate; yes, there will be a 50 per cent. increase in that. However, before noble Lords criticise I ask them carefully to read the White Paper. I can assure the noble Lord, Lord Strathcona and Mount Royal, that no discourtesy was intended when we arranged the debate we had last week; after all, we had discussions through the usual channels. I give him my personal assurance on that. There was no discourtesy.
I thought that we had a good debate. In fact, I did not think that we would be in a position to make a Statement today, but we have rushed it through. I am prepared to consider a debate, but that will have to be discussed through the

1637
usual channels. I know that my noble friend mentioned this in his winding up speech. I do not accept that we are mouthing platitudes. These are not "crumbs", as the noble Lord, Lord Strathcona, said. After all, we must bear pay guidelines in mind.
This is a considerable increase. I have before me a list of what it means to officers and to the rank and file; considerable increases are involved. I do not think that we should spread despondency. Noble Lords opposite are very responsible on these matters, and I understand that they appreciate the importance of the Army, the Navy and the Air Force, as I do. We, too, care. Therefore, I hope that noble Lords will look carefully at the White Paper before they make extravagant criticisms.
The Earl of ONSLOW: My Lords, perhaps the noble Lord, Lord Peart could do some elementary sums for me; I am not very good at them. The White Paper says that the differential in living standards was between 19 per cent. and 38 per cent. between now and 1975. It was widely leaked that there would he a 14 per cent. rise. In fact, it seems to be a 13 per cent. rise. However, am I right in understanding that that 19 per cent. to 38 per cent. differential will be made up between now and 1980? That would put a further large amount on to the Estimates.
Will that also take into account projected inflation of, say, 15 per cent. over the next two years? Presumably, that is 15 per cent. plus 6 per cent. of the 19 per cent., which is 21 per cent., or 22 per cent. plus 15 per cent. of 38 per cent. I am doing mathematics on my feet and I quite concede that it is difficult and that I may get the sums wrong. I am simply trying to underline the desperate falling away that has happened in Service pay. Will the noble Lord give a copper-bottomed guarantee that this will be rectified by 1980?
Lord PEART: My Lords, in my opening remarks I said that increases in pay of between 19 per cent. and 38 per cent. and averaging 32 per cent. were now required to restore the full military salary. It is recommended that it should be restored at the earliest possible date. However, the Review Body recognises that the Government have to bear in mind increases which exceed the guidelines. Therefore,
1638
this would have to be staged. The Review Body has recommended that this staging should be completed not later than 1st April 1980. I give that assurance.
Lord SHINWELL: My Lords, is my noble friend aware that, although the guidelines relating to civilian pay have been generally accepted, differentials have applied to a large number of civilian workers, for example, the miners? They can work overtime, for which they receive increased remuneration; productivity applies, particularly in the case of the miners, as a result of which they receive a very substantial increase in their remuneration. That does not apply to the men in the Forces. They receive nothing extra for overtime, special duties or anything of that sort.
I should like to ask this question. After my right honourable friend the Prime Minister had made his Statement in another place, was there any demand for a debate? Secondly, in the circumstances and whether or not there was a demand for a debate in another place, can we have a debate in this House? In that way, our views can be expressed, not so much on the Government's decision on the recommendations of the Armed Forces Review Body, but on the implication of the decision and on whether we can afford to have reduced Forces, because there may be resignations. Incidentally, it would be of great benefit if my noble friend could deal with the rumours about resignations. Do those rumours contain an element of truth? Can we have the facts?
Lord PEART: My Lords, if my noble friend Lord Shinwell is talking about resignations of those who are involved —the leaders in the Army—I would say that they are just rumours. I have answered the question of a debate. If there is a wish to have another defence debate, certainly I should not resist it because the White Paper is important. But I say to my noble friend that there has been an increase of 10 per cent. in the military salary, together with an increase in the X factor within the amount recommended by the Review Body which will add another three per cent. in total.
The extent to which these percentages \Nal be implemented will vary from rank to rank. In addition, the rate of Northern

1639
Ireland pay will be doubled to £1 per day. There will be certain changes in allowances, and a standstill in charges for accommodation pending a further examination by the Review Body. These together will add an even further 1 per cent., so it is wrong to assume that nothing has been given. cannot understand such language.
Lord DRUMALBYN: My Lords, I do not think that the noble Lord really answered the question put to him by my noble friend Lord Onslow. As I understood it the point was this. Over the time to 1980 there is to be this increase of 32 per cent. In the meantime the probability is that other earnings in other spheres will be rising. Will the corresponding figure for those rises be added to the 32 per cent. by 1980? I think that is the point.
Lord PEART: My Lords, I have assumed that it will go up in stages. However, if there is any doubt about this I shall certainly look at it carefully, but that is my impression and that is the advice I have been given. I am certain that there should be no worry on this at all.
Lord BOYD-CARPENTER: My Lords, can the noble Lord say more about the standstill on charges to which he referred? As comparability, as I understand it, is not to be restored until 1st April 1980, it would seem reasonable to ask that he should give an assurance that the standstill in charges will also last to that date. He referred to a standstill on accommodation charges: does that standstill apply to other charges?
Lord PEART: My Lords, no it does not. It is a separate item. Other charges I shall look at. I do not know the answer. I have only just recently seen the detailed Statement as such, but I shall look at this and answer the noble Lord.
Viscount BROOKEBOROUGH: My Lords, may I ask whether this increase—and I do not think that it is a very great increase—applies to the largest regiment in the British Army, the Ulster Defence Regiment? Does not this Statement slightly question the independence of the Review Body, which I feel should have
1640
recommended to the Government that parity should have been restored, and it then should have been the total responsibility of the Government to take into consideration the recommendations and the question of the national pay policy? Will they look at this question of the independence of the Review Body?
Lord PEART: My Lords, I cannot say that there has been any interference with the independence of the Review Body. On Ulster, of course it applies to all of the defence forces.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, may I, in a slightly different way, press the noble Lord about one aspect of what my noble friend Lord Onslow asked him? I think it is a different point from that put by my noble friend Lord Drumalbyn. The 32 per cent. is going to be restored, so we hear, by an early date in 1980. However in the meantime, assuming Government plans go right, inflation itself is running, so far as I know, at 71- per cent., even if their plans are fulfilled. That means that 15 per cent. will be taken off the value of the concessions by 1980, so far as I can see. How do the Government intend to recoup that additional 15 per cent.?
Lord PEART: My Lords, I cannot give a firm assurance on that. It will have to take note of this, and this is something which the Review Body, which will still be sitting, will have to consider. No doubt this will be raised. These are the figures which have been given for this period, the targets.
The Earl of SELKIRK: My Lords, could the noble Lord say whether the Review Body will resume its annual reporting, instead of doing so more spasmodically?
Lord PEART: My Lords, I think that that should be the situation, but that is my personal view. I think that the period is too long in view of changes which have taken place. This is a matter which I think should be considered.
Lord LLOYD of KILGERRAN: My Lords, may I ask the noble Lord the Leader of the House a question regarding the cost of accommodation? I ask this question in my capacity as Honorary

1641
Treasurer of the all-Party Group on Defence of this House. May I ask the noble Lord whether he is prepared to take steps to assure members of the Forces not only that the costs of accommodation will be frozen but that they will be reduced? Is the noble Lord aware that when I was visiting a defence establishment recently, the Commandant entertained me in a house and pointed out to me that the Commandant's house was empty because he could not afford the increased charges in relation to the rent and ancillary matters? May I ask the noble Lord to consider carefully reducing the cost of accommodation to members of the Armed Forces in this country?
Lord PEART: My Lords, that is another question. The Government policy is to freeze, and I think that that is right in the circumstances, but I am prepared to ask my colleagues to look at it.
Lord LEATHERLAND: My Lords, I believe that in accordance with the Rules of the House I am not entitled to make a speech but merely to ask a question, and so 1 do that feelingly, as one who was soldiering in 1914 for a shilling a day and only got five shillings a day as a company sergeant major a few years later. Can my noble friend tell us how much is the increase that a private infantry soldier will get, and what will be his pay and allowances after that increase has been granted? Furthermore, can he tell us what the cost this year will be and what the cost next year will be to the national budget? Finally, why cannot we have the whole two instalments phased into one and paid this year?
Lord PEART: My Lords, I think for guidelines reasons, and my noble friend knows that. I have figures here which deal with the impact on the ordinary private soldier. It varies from that. There is a series of bands, as my noble friend understands. Private soldiers on Bands 1 to 3 will get an 11·6 per cent. to 14·3 per cent. increase, which will mean from £5·08 to £8·47. That is a considerable increase.
The Earl of AVON: My Lords, could I ask the noble Lord the Leader of the House who is responsible for the lack of the pay going up over the last two to three years? is it the Army Pay Review
1642
Board?—in which case perhaps it ought to be reviewed itself. Secondly, could I ask the noble Lord who is actually responsible for the quality and quantity of the Armed Services? Is it the Army Pay Review Board or is it the Government? I believe that the Government ought to look at the Army Pay Review Board findings much more carefully than they do, in order to see that the quality and quantity of our Armed Services is maintained.
Lord PEART: My Lords, irrespective of the status of the Review Board, the responsibility must be the Government's. If there are to be any changes, then this should be addressed to the Government, and no doubt the noble Lord will pursue this.
Lord HARMAR-NICHOLLS: My Lords, I understand that it is the Government's responsibility. I may have misheard the noble Lord, but I gathered that he could not answer my noble friend Lord Boyd-Carpenter because he said that he had only just had the information. Has not this been in front of the Cabinet? Is not the noble Lord a member of the Cabinet? If this is not a Cabinet matter, then it ought to be. Did the noble Lord discuss it in Cabinet so that he knew what it was that he was giving in the Statement?
Lord PEART: My Lords, the noble Lord knows that my responsibility is for many matters. Naturally I do not know every item of detail in my head. I have tried, as always, to speak in defence debates in this House because I, like many noble Lords opposite, believe that we should have adequate defence forces. I am a strong Army man myself. I was in the Army, like many noble Lords, so I do not want the noble Lord to be offensive, because he is such an agreeable chap.
Baroness WARD of NORTH TYNESIDE: My Lords, the noble Lord the Leader of the House will be aware that it is almost impossible for anybody like myself to make a comment now on what has been done according to the Statement which the noble Lord has given. Is he aware that what worries a great many people is the effort that has had to be made to get the Services at any rate

1643
some improvement in their pay and conditions? All I would ask is for us to have a little time to consider this properly. I was glad to note that we should have another defence debate. Will the noble Lord consider with the Cabinet, before a further debate takes place, whether we shall then be able to have adequate treatment on the points of view that are put forward by people who want to see the Services always properly and adequately treated, so that we never have to have this terrible pressure to get this Government to do something!
Lord PEART: The last remarks of the noble Baroness were uncalled for, my Lords. This is a positive Statement and I am as anxious as she is to see that our Servicemen are adequately paid.
Baroness WARD of NORTH TYNESIDE: Then let us discuss the matter, my Lords.
Lord PEART: My Lords, I hope the noble Baroness will listen to my reply; we have been discussing this matter for over half an hour. I have given an assurance that I will look at the possibility of having a debate on Army pay or defence, if the House so wishes—
Several noble Lords: Hear, hear!
Lord PEART:— and we will meet through the usual channels. I suggest we now proceed to other business.

SCOTLAND BILL
House again in Committee on Amendment No. 129.
4.10 p.m.
Lord DOUGLAS of BARLOCH: It is a little difficult to follow this Amendment because the purpose of the clause we are discussing is not entirely clear to me. It appears to be a device for enabling legislative effect to be given to something which is not within the competence of the Scottish Assembly; I gather that because it deals with matters—this is stated expressly—which are not within the legislative competence of the Assembly. I should therefore like to know what is the justification for this, because if this
1644
sort of thing is going to happen frequently there will be a constant interaction between the United Kingdom Parliament and the Scottish Assembly which seems highly undesirable. More matters of conflict or disagreement should be avoided; the two bodies should try to proceed independently of each other, and it seems particularly undesirable that the Scottish Assembly should be invited, as this clause would allow, to pass measures which are beyond its competence in the hope that the Secretary of State will take the step of submitting the matter to both Houses of this Parliament in order, it may be, either to refuse or to agree to accept this deviation of the limits of the legislation laid down in the Bill.
The Earl of SELKIRK: I hope the noble and learned Lord, Lord McCluskey, will think very hard about Amendment No. 134, since I believe the words proposed would be an advantage, particularly to improve relations between the two Assemblies and make that relationship rather smoother. It would enable a Bill passed which might overstep the lines of a reserved subject by a small degree to be put right without throwing the whole Bill back. I am, however, rather doubtful about Amendment No. 131 and the word "or". This becomes a subjective matter as to what the public interest is, and I must say that the Assembly in Scotland must be its own judge of what the public interest in Scotland is; if it is not able to do that, then I agree it must be an incompetent body. While, therefore, I am doubtful about Amendment No. 131, I think No. 134 would be a valuable addition.
The Earl of ONSLOW: I have only one question to ask the noble and learned Lord, Lord McCluskey, on this issue, and perhaps his answer will expede us; since Lord McCluskey used that word I have looked it up in the dictionary and I see that it means to get one out of a difficulty. How and what will happen in the event of the Scottish public interest clashing with the English public interest? It is no good the Government saying that cannot or will not happen; the moment we enter into any form of devolved Government we break away from what many of us—perhaps our voice has not been heard—believe to be sensible unitary government and there can be clashes of

1645
interest. The noble Lord, Lord Gordon-Walker, and I have been sitting on a Committee where there was a public interest clash, or so it was claimed, between two boroughs and a certain county council. If that sort of situation can arise, how on earth will the Secretary of State make a judgment on the difference between the English, Scots or Welsh public interest when he comes to interpret this clause? This seems to be full of dangerous and foreboding consequences.
Lord McCLUSKEY: With respect to the noble Lord, Lord Douglas of Barloch, I do not think he has followed the clause, which is not there to allow the Scottish Assembly to legislate outwith its legislative competence; the reference to legislative competence in the clause he will find in subsection (2)(b), and that term is used there in the Bill as it stands in relation to the definition of a reserved matter. I should explain, therefore, that what the clause does is to enable the Secretary of State to invite Parliament to reject an Assembly Bill—which would normally be a Bill which is infra vires—on grounds that have nothing to do with legislative competence, but on grounds which must concur first of all that there is likely to be or may be an effect on a reserved matter (and for the definition of that we must look in subsection (2)) and, secondly, that in his judgment the public interest is likely to be adversely affected by the passage of the Bill. Therefore if these two conditions are satisfied, then he over-rides a Bill which usually will be within the legislative competence of the Assembly. That is the state of the clause as it stands and is slightly different from the construction placed on it by the noble Lord.
Coming to the other point raised on this matter, I agree with the noble Earl's second thoughts that this is a bit of a ragbag we now have by cobbling together all these Amendments; many of them, as he will recognise, cannot stand together in that they are inconsistent one with another, and I shall endeavour to point that out as I go through. First, on Amendment No. 129, which seeks to insert the words appearing on the Marshalled List; in our view it is quite unnecessary to do that. Consider the situation envisaged by the Amendment, and one must go to Clause 19 to see what the situation is or what the two situations
1646
are; to begin with, under Clause 19(1)(b), which is the first subsection referred to, we have a Bill which the Secretary of State has certified is incompatible with certain Community and other international obligations, and the Secretary of State says that that Bill has not to be submitted for approval.
In regard to Clause 19(4) we are concerned with the case where the Judicial Committee has considered the Bill on vires grounds, and has ruled that it is ultra vires. In neither event has the Secretary of State the slightest interest in overruling upon policy grounds Bills which he does not have to submit to the Assembly because they have not passed the test specified in the two subsections.
Therefore, to put into Clause 35 the words proposed in Amendment No. 129, is, in our judgment, unnecessary.
There is another criticism, and here I invite your Lordships' attention to some of the words in the second line of the Amendment; namely,
"… which does not fall within Section 19(1)(b)…".
I do not want to be unduly critical upon technical grounds, but we do not really understand precisely what is meant by those words. The other general point I should like to mention is that Clause 19(1)(b) deals with Community obligations. For reasons about which we may hear the noble Earl did not mention Community obligations at all, and so I am not sure why he referred to Clause 19(1)(b). That was not explained.
With regard to Amendment No. 130, I think I must look at it separately from the earlier Amendment because it involves a different matter. It should be taken along with Amendment No. 131. This is an example of two Amendments which cannot run together, because the effect of the first Amendment, if considered on its own, is to delete lines 25 to 29—I am now informed by the noble Viscount, Lord Colville of Culross, that they are alternatives. Therefore let me look at them.
The effect of the first Amendment is to delete lines 25 to 29. That means that the second condition in the clause, which has to be fulfilled before there can be override on policy grounds, goes out. The second condition is that the enactment of the provision in question would not

1647
be in the public interest. Accordingly, the effect of this Amendment is that the clause would now read:
"If it appears to the Secretary of State … that a Bill passed by the Assembly contains any provision which would or might affect a reserved matter … he may "—
or, if one takes the other Amendment—
"he shall lay the Bill before Parliament …".
In other words, the public interest goes out of it, altogether. This Amendment, No. 130, with Amendment No. 132 (which substitutes the word "shall" for "may") simply means that if there is any provision in a Bill, albeit that that provision is within legislative competence, and if it appears to the Secretary of State that that might indirectly affect the matter which is a reserved matter, as defined in the clause, then he has no alternative but to ask Parliament to override it. That seems to be an extremely heavy hammer indeed. Furthermore, it is contrary to the whole scheme of devolution which is contained in the Bill.
The main point of Amendment No. 130 taken on its own seems to be to drop the word, "might". Let us look at the context of the word "might" here, which appears in line 26 on page 16 of the Bill, where it is stated,
"… which would or might affect a reserved matter …".
The Government do not think that it would be wise to take out that word. The conditions precedent for policy override must be based upon the judgment of the Government exercised through the Secretary of State, and this judgment must be, in some degree, subjective. In the Government's view, a test that an Assembly Bill would affect a reserved matter directly or indirectly is too narrow to be reasonably effective.
4.25 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: I do not want to interfere here, but is the noble and learned Lord right about that? I thought that the subjective element was inserted by the first words of subsection (1); namely,
"If it appears to the Secretary of State …".
I thought that that adequately introduced the subjective element.
Lord McCLUSKEY: Yes, that is certainly the function of the words,
"If it appears to the Secretary of State …".
What I was saying was that the judgment must be subjective, and that is why those words appear in the clause. But if the Secretary of State were to be called upon to answer for the exercise of his judgment, and if he had to demonstrate that an Assembly Bill would have repercussions, that might be rather difficult for him to demonstrate—
Lord HAILSHAM of SAINT MARYLEBONE: Does that not really introduce the subjective element twice? To say, "if it appeared" to him that it "might" gives him an immense gate through !which he can drive the proverbial coach and horses.
Lord McCLUSKEY: In another place it was "a coach and four" actually, but doubtless we are a more poverty-stricken lot here. The purpose of the clause as drafted, containing both elements to which the noble and learned Lord has drawn attention, is to make it as clear as it may be that this is a matter for the Secretary of State, and not a matter in which the courts will be invited to challenge the Secretary of State at every turn. That, I believe, is a policy which the Committee will accept in relation to this matter where the ultimate judgment is the judgment of Parliament itself.
I was asked some questions about the public interest here, and as I have just indicated, Amendment No. 130 would omit the reference to the public interest. In my submission, that would not be satisfactory. The Government consider that subsection (1)(b) of Clause 35 is a necessary and useful requirement in the overall balance which they are aiming to achieve in the clause. It is not inconceivable that an Assembly Bill which it was considered could have an indirect effect upon a reserved matter, might nevertheless be acceptable, and not against the public interest. Accordingly, the Secretary of State might wish to say that the public interest was not affected, and he should not, therefore, be required, as he would be by one of the later Amendments, to submit the Bill to Parliament. That relates to the substitution of "shall" for "may".

1649
I was asked what the "public interest" meant. This is a rather difficult question to answer, because the public interest really cannot be defined. It becomes a question of the circumstances and context in which it is sought to be exercised, but what we are seeking to do by using these words here is to give an indication of the kind of criteria which the Secretary of State will seek to apply. But the true judge of what is the public interest is Parliament, and Parliament will look to the public interest—that is what the clause envisages—and will judge what the public interest is in the United Kingdom context, because it is the United Kingdom Parliamentx2014;
Lord HARMAR-NICHOLLS: If we read the Amendments as a whole, we see that Amendment No. 134 says that the Minister would have to state what were the defects which caused him to return a Bill, and, in his giving that statement, Parliament would be able to see whether he was taking the public interest into account.
Lord McCLUSKEY: I shall come to Amendment No. 134 in a moment. I should like to deal with the particular questions which the noble Earl asked me. He said that one could think of circumstances in which it might be desirable to override, yet under the clause as it stands one could not override. He specifically mentioned the two cases of corporal punishment and capital punishment. In both cases I accept that Clause 35 does not bite. In other words, Clause 35 could not be used by the Secretary of State, and by Parliament, to prevent the enactment in Scotland of a provision which introduced capital punishment, or corporal punishment, or both.
Your Lordships would be entitled to ask what could be done about it if Parliament regarded a provision as wholly wrong. The answer is that Parliament can always introduce legislation which itself overrides anything that is done in Scotland. So, if the United Kingdom Parliament, and particularly the United Kingdom Government, came to the view that there should be no capital punishment in Scotland, and if the Scots took the intention that within their legislative competence they were going to introduce a measure which would bring in capital
1650
punishment, then we could not use Clause 35, but there could be legislation which would prevent that happening.
The second point is that, if the Scottish Assembly passed a measure which introduced capital punishment and then sought to apply it, it would be found that the prerogative of mercy is reserved under Clause 60(1).
Viscount COLVILLE of CULROSS: If you had Amendment No. 131, however, I think it would be possible to override it.
Lord McCLUSKEY: Yes, I fully accept that. Amendment No. 131 would enable legislative override under Clause 35 to bite in relation to a matter of that kind. 1 do not dispute that for one second, but I submit that, on general grounds, that is unnecessary; one really ought to have both matters before legislative override is brought in. It must be recalled that the whole scheme of devolution envisages that we give control of certain devolved matters to the Scots and leave them to get on with it. The fact that the United Kingdom Government do not like what is happening in Scotland is, as I said yesterday, neither here nor there under a scheme of devolution of this kind.
I think I need say nothing further about these particular examples, but I was asked specifically in relation to Amendment No. 132 about the removal of the discretion of the Secretary of State. This is a rather different matter, in the context of this clause, from overriding an Assembly Bill on policy grounds. A decision which is based on policy considerations, even where the public interest is also in point, must he based on the judgment of the Government of the day, expressed through the Secretary of State, but this judgment would, as we have indicated, be in some degree subjective. It would therefore, in our view, not be wise or realistic to place on the Secretary of State a mandatory duty to act. Where the conditions precedent contain such a subjective element, it is in the Government's view much preferable to allow reasonable flexibility by giving the Secretary of State a discretion. In practice, of course, override is unlikely to be used without collective ministerial consent.
Again, in relation to that answer, noble Lords may say, "Suppose many people

1651
feel that the Secretary of State ought, in the circumstances, to use the power he has under Clause 35 and he does not do so?" The answer is that there are many ways within normal Parliamentary procedures to put pressure on the Secretary of State, and, if there are circumstances in which he comes to a judgment, within the area of his discretion, that he is not going to put a Bill of this kind before Parliament with a view to its being struck down although he could do so because it fulfils the conditions laid down in Clause 35, his critics and those who think otherwise will be able to use ordinary Parliamentary procedures to challenge him and put pressure on him to get him to change his mind.
In relation to the other Amendments, Nos. 133 and 134—and there is another one, Amendment No. 136, which I think has not been dealt with and which I believe the noble Viscount is indicating goes with the others—as we have said, Clause 35 is concerned with override on policy grounds; it is not concerned with the detailed drafting of the Bill. It is not the detailed drafting which will be objected to, but the policy underlying the Bill; and, in those circumstances, it does not seem to us appropriate to require a statement of the detailed Amendments which would make the Bill acceptable. This is a provision which could be more apt in relation to a question of vires than in relation to a question of policy.
Now, if I may try to enlarge upon that answer, it is argued here that the Secretary of State ought to include a statement of the Amendments which are, in his opinion, necessary to correct the defect in the Bill, but it must be remembered that, when the Secretary of State comes to exercise his override power under Clause 35, this is not going to be sprung unsuspectingly upon the Assembly. There will have been consultation beforehand and there will have been clear indications to the Assembly that this policy or these provisions or whatever it may be—perhaps the whole Bill—are objectionable on policy grounds and will be overridden. It is quite clear that, in the course of these discussions, it will be made plain to the Assembly what it is they will have to delete from the Bill in order not to encounter this difficulty.
Viscount COLVILLE of CULROSS: It may not be news to anyone else in the Committee, but it is certainly new to me that at every stage of the Scottish Assembly legislation, as each Amendment is moved or is accepted by the Executive in Edinburgh, there will be a telephone call from London saying, "This one is all right but that one is wrong". Is there really going to be minute by minute consultation at each stage of a Scottish Assembly Bill, assuming it has more than one stage? Is this thing really going to be dealt with on that sort of basis? 1 should have thought that, if anything was an apron string, it was that.
Lord McCLUSKEY: I did not say that. What I indicated was that there would be consultation, and what I envisage is that as each Bill is printed in Scotland, and as the Amendments are printed, they will be looked at by those who advise the Secretary of State or the Lord Advocate, or both; that they will have regard to the terms of them; and that they will draw attention to any clauses or provisions in any such Bill which would seem to fit within the four corners of Clause 35. If the Secretary of State comes to be of the view that the provision in the Bill is one which he may have to override, then in these circumstances I would expect him to get in touch with the Scottish Assembly and say, "Do you really want to push on with this measure?—because I am afraid I shall have to override it".
Viscount COLVILLE of CULROSS: There is one other thing, then. I do not want to hold up the Committee on this, but where we have the sort of case which the noble and learned Lord has just mentioned—where, unless we amend Clause 35, the capital punishment case, the Assembly cannot be overridden under Clause 35 but Parliament may be invited to legislate later expressly to repeal the Scottish Assembly Act—are they also going to be told about that?
Lord McCLUSKEY: I should have thought certainly. Where the Assembly introduces a measure which is so unacceptable that the Westminster Parliament is going to have to introduce Westminster legislation in order to repeal, in effect, or render ineffective, that Scottish Assembly Act, of course they will have to be told about that. Otherwise,

1653
relations between the Assembly and the Westminster administration will become impossible. There has to be consultation all the time. We are not dealing with a foreign Power on the dark side of the moon; we are dealing with an Assembly in Edinburgh, which is about a 55-minute flight away and easily obtainable on a telephone or by other means of communication which were mentioned yesterday.
Lord DRUMALBYN: May I ask the noble and learned Lord whether these consultations will be made public, or will they be subject to the normal leaks? If so, what does he think the reaction will be to influence being brought to bear on the Assembly all the time so as to make it change its mind?
Lord McCLUSKEY: In the first place, we do not think there will be many circumstances in which the Clause 35 machinery will be likely to operate. We do not think there will be many circumstances at all, and we can conceive of very few in which we would expect there to be legislation at Westminster to override a provision of the Assembly. Accordingly, this is not going to be an everyday thing. There may be everyday consultations in relation to a particular Bill or set of Bills, and there is no special reason why these should be made public. It may be that there is a misunderstanding, and that that misunderstanding can be clarified by consultations. 1 would not expect these to be publicised. But, of course, when it comes to a point where the Assembly is set upon one course and the Secretary of State is determined that it shall not pursue it, then one would expect that to become public, and it would become public through the normal political processes, both within the Assembly and at Westminster.
The Earl of PERTH: I wonder whether the noble and learned Lord would think a little further about his objection to Amendment No. 134? He said he thought it was unnecessary because there would be continuous consultation. I think the idea of continuous consultation is a negation of what the Assembly should have; namely, a degree of going on its own way. I can see the advantage, on the other hand, if something has gone wrong, in the Secretary of State, when he puts before Parliament the whole matter to
1654
which objection is taken, issuing a statement saying, "But for this one particular thing, all would be well". I think this helps. In other words, it seems to me that there is an advantage in this Amendment because it avoids the sort of apron string view which otherwise might be held about all the legislation which is going before the Assembly, and yet it makes it easier for everybody in the event that there is something to which the Secretary of State objects.
The Earl of SELKIRK: 1 hope the noble and learned Lord will think further on this. I think that a lot—
Lord McCLUSKEY: If the noble Earl will allow me, I have not really finished my reply yet. I am not only thinking further; I am in fact thinking while I stand here. What I was thinking was - -and perhaps I should disclose it to the Committee—that one of the difficulties, to be frank, is that some of these Amendments which are taken together will not stand one with another as the noble Viscount acknowledges; some of them are really much more serious and less acceptable than others.
Take the first Amendment, which I deemed to be unnecessary. That would not be objectionable. I have no particular objection to that, except that I am not happy about the wording. If the noble Earl and the noble Viscount wanted to press it, that would be one which, I daresay, we could accept. This last one is one which I should be content to look at. But it is difficult, when the whole subsection is attacked by a series of Amendments—some of which are possibly acceptable and some are not —to know what to do. I should like to suggest to the movers of these Amendments that they take them away and I will take away the discussion that we have had. if they would like to be in touch with me and tell me what they regard as really important and what they can throw away, we might solve the matter between ourselves and present a unified front to the Committee. That would save time today and on another occasion.
4.41 p.m.
Viscount COLVILLE of CULROSS: I am afraid that it is my fault and my fate, whenever we start one of these

1655
Committee stages, that mine are always the first Amendments and I am always in court and therefore I can never get here until 4 o'clock. If it were any other day it would have been all right, but it happened to be Monday and Tuesday. I was not going to move these Amendments all together and I am indebted to my noble friend Lord Mansfield for doing it at all without much chance to discuss them with me. I think the noble and learned Lord has made a good suggestion.
The Amendments raise points, some of which are probing, some of which are alternatives and some of which raise really different matters from others. He has explained the position of the clause in the scheme of things—I think he has—because he has been talking about political over-ride rather than vires over-ride (and I wanted that explained) and he has commented on some examples on the way in which it might be applied in given circumstances. That, too, is something that I wanted. It was very helpful.
I agree with him that there are many different classes of Amendments here which we ought to think about separately. I should like to take up his offer to read and think about what he has said and perhaps, if some of the thinking behind my Amendment was not immediately clear to the Committee, and conceivably not to my noble friend, I could explain those matters further and we could come back to a good deal of this later. I think that Amendment No. 134 could be helpful. If, as I understand it, there is no procedure in the Bill for a Scottish Assembly Bill —having got to the stage of being presented to the Queen or being vetoed under this provision, it can go back again to Edinburgh for a further stage of amendment at the moment—it does not follow that standing orders made by the Assembly would not allow this sort of thing. However many consultations you may have, it may be that the Assembly in Edinburgh would wish, for some point of principle, to insist as far as it could on two clauses in a Bill which is otherwise wholly acceptable and harmless. They might want to get to the stage where they force the Westminster Government to take a stand on it, but, in the end, they would —as your Lordships sometimes do—be prepared to back down. Then there could
1656
be a provision whereby, if the exact point of defect or clash was pinpointed and the way in which it would be acceptable is set out, it could go back to Edinburgh and they would not have to start all over again; for that is what they have to do at the moment. I was trying to make a constructive piece in machinery out of what at the moment is, I think, something of a blunderbuss nature.
Lord McCLUSKEY: Before the noble Viscount sits down, I accept that his approach is constructive and valuable. We shall see when we come to the next Amendment. I cut short my own answer in relation to this last point, because I am impressed by the matter. In any event, the Secretary of State when he comes to Parliament and says, "1 want to use my override power", is going to have to give reasons and to specify to Parliament what is wrong with the Bill. Therefore, it may be that no harm is done if he puts the matter forward in this way. I will look at the matter. I believe it is constructive.
Lord WILSON of LANGSIDE: Can the noble and learned Lord help me on two points arising out of what he said in answer to the noble Earl? I am sure that the necessity for asking these questions derives either from my own obtuseness or, possibly, from a stubborn refusal to see anything good in the Scotland Bill. The first point I would wish to ask about is this. He said—and he has said this before in the course of these debates while the House has been in Committee—that whatever was felt here in Westminster about the legislation of the Assembly was neither here nor there. That was a matter, he said, for the Scots. How does he find consistency between that and the constant denial of the claim that what this Bill does is to set up a rival Parliament? How does he find consistency between the assertion that what the Scots do in the Assembly is neither here nor there and the denial of the accusation that at the heart of this Bill is an attack on the sovereignty of Parliament? It seems to me that, in this kind of context, the noble and learned Lord and the Government are trying to ride two horses throughout these debates. I suppose that is why they do the splits every now and then.
The second point I wish to make derives from what the noble Lord, Lord Douglas

1657
of Barloch, said—and I am sorry he is not here. I found myself in agreement with what he was saying. I wonder whether the noble and learned Lord's answer really met the point he made. I look at this clause and I ask the noble and learned Lord to tell me if I am wrong in thinking that, in effect, what it says to the Assembly is this: "You may pass a Bill and that Bill may contain a provision which directly affects a reserved matter; but that is all right unless the Secretary of State thinks it is not in the public interest." Of course, if he thinks it is not in the public interest, the matter will go to Parliament here; but if he thinks otherwise it is a matter for the Secretary of State. Nevertheless, the Bill passed by the Assembly may have an effect on directly reserved matters. Does that have no effect at all on the sovereignty of the Mother of Parliaments?
I believe that the Government will have to face up to this. I think it goes to the heart of the whole matter; and it goes to the heart of many of the other criticisms which have been directed against this Bill. It is clear from everything that has been said that government in Scotland certainly is not going to be simpler with provisions such as those in Clause 35. For my part, I should have been disposed to support this Amendment and I await the answers of the noble and learned Lord to the questions I have asked.
The Earl of ONSLOW: I wonder whether the noble and learned Lord could help me too. It crosses my mind that this clause might be better re-written as a whole to say: "Her Majesty may veto this Bill with the advice and consent of the Secretary of State for Scotland." That would be much easier. These Assembly Bills would be much easier and we would not then get ourselves into muddles in consultation over what is the English public interest. That is very indefinite and smacks of smoke-filled committee rooms and of "leaning on", and private pressure. There is none of the open Government which we are now supposed to like and to pay lip service to. In fact, this country is about the worst in Western Europe for private government and private influence.
I am not in this particular context accusing only the present advisors to
1658
Her Majesty. This is a habit which is deeply ingrained. I am afraid that anybody who gets within a million miles of advising Her Majesty on policy matters always want to keep it quiet, by the back door, so it does not come out—Section 2 of the Official Secrets Act, and all the rest of it. There is that overtone to it. The noble and learned Lord, Lord McCluskey, has not answered my question about the difference between Scottish public interest and English public interest. When we were a unitary State, the two were the same. This Bill introduces difficulties which are going to produce two different public interests. The English are not going to like that.
Lord McCLUSKEY: Assuming the noble Earl is trying to be serious, may I ask him, if he thinks that the public interest of one borough can be different from the public interest of another borough, how is that consistent with his suggestion that the public interest of Scotland is always the same as the public interest of England?
The Earl of ONSLOW: What I was trying to say was that the two borough public interests only think they have different public interests in the case about which I was talking. In fact, I foresee that people are going to say there are two public interests. This is the worry I have about it. The third point I wanted to ask was this: Is it not bad law or bad practice to say: "Well, use automatically something like the prerogative of mercy"? This is using a prerogative automatically. Is that not a bad thing to do?
Viscount COLVILLE of CULROSS: I suggest that this debate is getting a little away from these Amendments. There is, after all, the opportunity to discuss the whole clause on the Question. That the clause shall stand part of the Bill? My noble friend might think it more appropriate perhaps to deal with these matters on that occasion.
Lord McCLUSKEY: I should be perfectly happy. I do not want to leave Lord Wilson of Langside's questions unanswered except on the same basis.
Lord WILSON of LANGSIDE: I am quite happy. I thought it proper to ask

1659
the questions since they related directly to what the noble and learned Lord had said.
Lord CAMPBELL of CROY: I have put down an Amendment to leave out Clause 35 in order to indicate that we hoped to have a general discussion on this clause.
4.54 p.m.
The Earl of MANSFIELD: It was generous of my noble friend Lord Colville of Culross to take a measure of responsibility for what happened when he was not here. But in fact the responsibility is mine. I succumbed to the blandishments of the "usual channels" to try to get your Lordships' deliberations to move a little faster. It was wrong of me to fall to those blandishments. The result has been that we have had one perhaps not very satisfactory debate when probably we would have had a number in a very much longer series of possibly more satisfactory debates.
In the circumstances, I know N,NT on these Benches will take up the invitation of the noble and learned Lord to consider Clause 35, and how it can be improved. I was at least heartened to hear the noble and learned Lord say that, in his mind at any rate, the clause is capable of improvement. I want to leave this point with the noble and learned Lord: in discussing some of the Amendments—notably Amendments Nos. 133, 134 and 136—he kept on repeating that, in his view, there would be close consultation as between Parliament in Westminster—or, at any rate, the Government—and the Scottish Assembly. I wonder whether that is an assumption which it is safe to make. Putting it in another way, I wonder whether it is an assumption which can be made and brought into the thinking of this Bill.
I should prefer to have the assumption made that relations between the two bodies, the Scottish Executive and the Government of Westminster, will, one hopes, be friendly and correct, but not perhaps any more cordial than that. If one has Parties of different complexions in the seat of power at both ends of the United Kingdom, the relationship might not be so very good. It might well be that while the civil servants would confer
1660
among each other as to the likely outcome and effect of any particular Scottish Assembly Bill, 1 do not regard it as by any means certain that there would be that cordial exchange of ideas which the noble and learned Lord seemed to imply was the necessary outcome of any Bill seeing the light of day in the Scottish Assembly.
Then we went on to the matter of what the Government here would do if something which it did not like happened in Edinburgh. We were told that Parliament could pass a Bill which would override the Scots Assembly. May I put this forward for the noble and learned Lord to ponder over? Supposing the Scots do not have the very generous summer vacation which the English have always claimed, both in Parliament and in the courts. Supposing that they continue merrily on through August, passing legislation which the Scottish Assembly considers desirable. That is one possibility.
Supposing the Government in Westminster is—and I do not want to be offensive and say "Like this one" —in a position where perhaps it is not as powerful as it might be and finds that it cannot take the necessary Parliamentary action as is envisaged by this clause. There is also a third possibility: supposing the Government is about to resign or fall, or supposing that there is going to be a General Election. It would not bring the deliberations of the Scottish Assembly to an end.
Suppose the Session was crowded; suppose there simply was not time to put into the Parliamentary timetable the Bill, to become an Act, which would seek to remove the repugnancy which the noble Lord agrees could occur. All these matters are worthy of some thought, not least by the noble and learned Lord. I am certain that we will have to come back to them at a later stage of this Bill. For the present, I shall go away and read the Official Report, with the noble and learned Lord's speech, with a great deal of attention and, for today, beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 130 to 134 not moved.]
4.58 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 253:
Page 16, line 33, leave out subsection (2) and insert—
("(2) For the purposes of this section a reserved matter is one—

(a) which concerns Scotland (whether or not it also concerns any other part of the United Kingdom); but

(b) with respect to which the Scottish Assembly has no power to legislate (disregarding for this purpose paragraph 8 of Schedule 2 to this Act).").

The noble and learned Lord said: When we looked at Amendment No. 78, an Amendment to Schedule 2, which stood in the name of the noble Viscount, Lord Colville of Culross, it was an illuminating study. It disclosed to us an infelicity in Clause 35(2)(b). The term "legislative competence of the Scottish Assembly" is used in the Bill solely to describe the character of a provision of an Assembly Act or Bill. It has no other meaning. Clause 35(2)(b) uses it to describe something which ex hypothesi is not part of an Assembly Act or Bill.
That was one matter which came to light. The second matter, which was of rather more substance, was that if, as a result of the operation of paragraph 8 of Schedule 2, as it stood, something fell within the legislative competence of the Assembly but would not otherwise be within the legislative competence, it would be very useful to have available the Clause 35 override to deal with such a provision. That was plainly the point that the noble Viscount had in mind. Amendment No. 253 seems to deal with both matters. In moving it, I should like to thank the noble Viscount for his vigilance and assistance. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES (Lord Maybray-King): I am advised that if this one is carried I cannot call Amendment No. 135.
Viscount COLVILLE of CULROSS: It is for that reason that I should like to mention Amendment No. 135 at this stage because, generous and kindly though the noble and learned Lord has been to me, I am still not sure that 253 is comprehensive and right. There are two points here. The first does not arise directly under this clause and it may he that the noble and learned Lord would rather deal with it on Amendment
1662
No. 140, or possibly the equivalent one that I must have put down somewhere—it would be Amendment No. 140 because the definition in Clause 37 is the same as in Clause 36. Just to give notice of this, when it comes to subordinate instruments, those subordinate instruments—if they are made by virtue of a Scottish Assembly Act which, by virtue of paragraph 8 of Schedule 2, does extend beyond the bounds of Scotland to the minor extent that is allowed—the subordinate instrument may, by the same terms, extend beyond the bounds of Scotland and still be within the legislative competence of the Assembly and therefore within the power of a Scottish Secretary.
Therefore, the first point is: if one is going to make this Amendment in Clause 35 for primary legislation, should one not do the same thing for the Amendment which affects Clause 37? I am not sure whether or not it is then apt to have the same definition in 37 as in 36, because the powers of Scottish Secretaries in their executive capacity do not seem necessarily to be the same, nor to have the same scope so far as cross-Border activities are concerned, as the legislative competence of the Assembly or the power of a Secretary in subordinate legislation under Clauses 35 or 37.
If that is not clear, I am not surprised! But I shall come back to it if necessary. That is the first point of which I give notice. It does not arise on this Amendment. What does arise is a point which I attempted to express in Amendment 135. I must confess that the Public Bills Office thought I was mad and I expect everybody else does as well; but I eventually persuaded the Public Bills Office that it was not a complete lunacy. The case I have in mind is this: for one reason or another the Scottish Assembly has passed Acts about reciprocal enforcement on, say, the process of criminal service or possibly in domestic proceedings, or something like that, in which it is obviously sensible, if they are going to provide for that sort of thing in Scotland, something should be said in the Bill about how the Scottish process is to be introduced south of the Border so that the person who, for some reason or other, has crossed from Dumfries to Cumbria, may still be dealt with. That I would expect to be a perfectly sensible and proper thing in an ordinary case.

1663
Let us suppose that something goes wrong and it is discovered that the provision is faulty and that it is faulty solely to this extent: that there is a minor trouble relating to the enforceability of the law south of the Border. The Scottish draftsman made some mistake in relation to the way in which his legislation would be enforced in England but the thing works perfectly well in Scotland. Therefore, the Scottish Assembly will wish to legislate to put that right, and I suppose it is possible that some policy clash could arise.
If the noble and learned Lord will look at Amendment No. 253, first of all, the legislation was, within the terms of paragraph 8, competent for the Scottish Assembly because it was really only consequential. However, for one reason or another, the United Kingdom Government want to override it and cannot, for, although it is a matter with respect to which the Scottish Assembly has no power to legislate disregarding paragraph 8 —because, although it was cross-Border, it would not now fall within subparagraph (b) of this Amendment since paragraph 8 is excluded—it still is not within (a) because it does not concern Scotland at all. It concerns the law south of the Border and not in Scotland, because it is only a minor consequential point. That must be so, because my hypothesis required only a minor Amendment to the effect of the legislation south of the Border and that was the sort of thing I was looking for in putting the matter the other way round. Therefore, it was for that purpose that I put down Amendment No. 135, and I believe it is a valid point. So, although I welcome Amendment No. 253, 1 am not yet sure that it is complete.
Lord McCLUSKEY: If I may just say so in relation to the first point, I think the noble Viscount did himself an injustice. What he said was perfectly clear and indeed, if I may say so, I think it was clear from the Amendment itself what he had in mind. I have put in train a study as to whether or not we have to carry through into Clauses 36 and 37 the kind of amendment we have put in by means of Amendment No. 253. I can assure the Committee of that.
In relation to the other matter, so far as I could follow what the noble Viscount
1664
was saying and upon the assumption that he is not mad—one that I am perfectly prepared to make—I think perhaps he has misread sub-paragraph (2)(b) in Amendment No. 253, because, as I read it, if the Assembly passes an Act and there is a consequential provision contained in it which operates cross-Border, then that cross-Border provision is none the less outwith legislative competence within the meaning of sub-paragraph (2)(b). I see that the noble Viscount is not surprised by my answer: he agrees with it. Therefore, I have not followed what he said and I shall therefore read what he has said. 1 think that, as we are now looking at Schedule 8 and at these other matters, that would be the sensible way to do it. Again, there is no argument about this. We want to get it right and I am indebted for the assistance we have been offered and for the explanations given. We will look at them and hope to get on ultimately with other business.
Viscount COLVILLE of CULROSS: I shall take only one minute very quickly to explain again to the noble and learned Lord. Yes, it would fall within subparagraph (b) of his Amendment but it would not fall within sub-paragraph (a) and, as I understand it, it has to fall within both before it is a reserved matter. It would not fall within sub-paragraph (a) because it does not concern Scotland at all but is solely a consequential matter for south of the Border. That is the point.
The Earl of SELKIRK: I take it that sub-paragraph (b) in the Amendment really means in effect that, on any occasion on which paragraph 8 of Schedule 2 is used, this could come into operation: in other words, it could be checked by the procedures under Clause 35 for any use under Schedule 2, paragraph 8.
Lord McCLUSKEY: That is right, with the possible exception of the case that is figured by the noble Viscount: in other words, if it does not fall under (a) for the kind of reason he has given, I think that might depend upon what is meant by the words "concerns Scotland" in the context, and I shall take that into account. Certainly, we will look at all that has been said.
Lord BOYD-CAPRENTER: I wonder whether the noble and learned Lord will confirm that the putting forward of this Amendment and what has been said this afternoon do not in any way erode the undertaking that he gave last week to have a look at the necessity for paragraph 8 of Schedule 2 to exist at all.
Lord McCLUSKEY: If I could depict the anguish that is going on among those discussing these matters, I could bring tears to the eyes of the noble Lord! These matters are being discussed and there are those ranged on the side of preserving the provision in its present form; there are those who want to change it and there are those who want to abolish it. I look forward to announcing the result in the fullness of time. My undertaking is not in any way affected by what I have said.
On Question, Amendment agreed to.
[Amendment No. 135 not moved.]
5.10 p.m.
Earl FERRERS moved Amendment No. 330:
Page 17, line 2, leave out ("either").
The noble Earl said: I beg to move Amendment No. 330, and I should like to speak at the same time to Amendments Nos. 137, 331, 332, 333, 334 and 335, and the Amendments on the Marshalled List to leave out Clauses 72 and 73, which of course have no number. These Amendments to Clauses 35, 36 and 37 are all paving Amendments to the Amendments which are down later to leave out Clauses 72 and 73. Up to now, we have had debates on matters relating to the Assembly, to the setting up of the Assembly, to the standing orders, to the composition of the Assembly and so on, and others on the deep legal impact which this Bill will have; indeed, we have had some experience of that this afternoon. I would only say that, to those of us who have not yet risen to the intellectual prowess of the fourth form of my noble friend Lord Lauderdale, it has seemed rather like the crack of rifle fire over the top of our heads. But those are intensely important legal points.
These Amendments are totally different and readily understandable, and their objective is quite clear. I am bound to
1666
say that neither the Amendments, nor the substances in the Bill to which they refer, have anything to do with devolution. They refer to the constitutional rights which your Lordships' House has over subordinate legislation, and the effect which your Lordships' House may have upon subordinate legislation which emanates from certain parts of this Bill. Quite understandably, and quite correctly, the Government have recognised the problem which will be created if the Scottish Assembly passes a Bill which includes provisions which may affect a reserved matter for which the United Kingdom Parliament, and the United Kingdom Parliament only, is responsible. Under the Bill, if the Secretary of State were to consider that a Scottish Assembly Bill would, or might, affect a reserved matter, or if the Secretary of State were to consider that the enactment of a provision would be against the public interest, then the Secretary of State can invite Parliament to use its overriding authority to prevent the Bill from becoming law.
Under Clause 35, the Secretary of State can do this by laying a Scottish Bill before Parliament with a statement saying that, in his opinion, the Bill should not be submitted to Her Majesty in Council for approval. Under Clause 36, a similar provision is allowed for action which is proposed to be taken by a Scottish Secretary and, if any action which he proposes to take is likely to affect a reserved matter, again the Secretary of State can direct that the proposed action be not taken by the Scottish Secretary, and he has to lay the direction in front of Parliament and have Parliamentary approval for it. Clause 37 has a similar proviso for Statutory Instruments.
In all these cases, if the Secretary of State thinks that the Scottish Assembly, or its Executive, is going beyond its responsibilities and is interfering with reserved matters, then the Secretary of State can say No, but he has to have Parliamentary approval for a Resolution on the action which he has taken. This is entirely understandable. It exerts the proper and undisputed right of the United Kingdom Parliament to protect the matters over which the United Kingdom Parliament retains unfettered control.
But Clause 72 states that if a Resolution is placed before both Houses, and if your

1667
Lordships do not approve such a Resolution when another place has done so, then a further Resolution can be presented to another place 10 days later, in exactly the same terms as the first one, and, if that Resolution is passed as well as the first one, then your Lordships' objection will be of no effect. In other words, it overrides entirely your Lordships' objections.
This is pretty fundamental stuff. While the whole Bill alters the Constitution of the United Kingdom, these Clauses 72 and 73 to which these Amendments refer alter the constitutional practices of Parliament. It is not just the House of Lords which will be affected, but those people, whoever they are, whose interests will be affected by one Chamber of Parliament totally disregarding the views of another. Whatever the merits may be, this is a clear departure from precedent and practice and tradition. The whole principle of the Parliamentary system is that nothing becomes law in this country, unless it has the agreement of both Houses of Parliament, both in total and in detail, unless it is passed under the special circumstances of the Parliament Act. Even the Finance Bill has to have the approval of both Houses of Parliament.
It is a long-standing and recognised custom, followed by Governments of all complexions, that subordinate legislation, other than Financial Instruments, should likewise be subject to equal scrutiny by both Houses. Yet in these clauses the Government are proposing a total change. I know that many people consider that your Lordships' House needs changing, either as to its composition or as to its powers, or both. Some people do not. But whatever our views and opinions may be, the right way to alter the affairs and practices of either House of Parliament is by a Parliament Act, and not by a surreptitious clause in a Bill on devolution, in a Bill which has been the subject of the guillotine, the effect of which is that this clause, which creates this constitutional innovation, has not been at all considered by another place. Indeed, until this moment it has not been at all considered by Parliament. It has just been written into the Bill with the hope that it will become law, and it is something which has nothing to do with devolution.
1668
The one fact which has appeared time and again throughout the proceedings on this Bill is the possibility of conflict between the Assembly and Westminster, and the necessity that, so far as possible, this should be avoided or, at least, limited, but I believe that the proposals as put in the Bill at the moment could contribute to conflict. Under these provisions, another place could—I do not say that it would—for political purposes frustrate the Assembly.
Let me take, for example, a situation in which the Assembly passes a Bill on secondary education. This is a devolved matter and is wholly within the competence of the Assembly. But the provisions of the Bill might be considered by the Secretary of State so to alter the standards or levels of secondary education that they could affect, either directly or indirectly, university education, which is a reserved matter. It could be that the Government of the day in Westminster was of a different complexion from that in the Assembly, and might well object to university education being so affected by the Assembly Bill, and could seek, possibly even for partisan purposes, to have the Bill negated. So the Secretary of State would lay the Bill before Parliament and ask for a Resolution to be passed, saying that the Assembly Bill should not be submitted to Her Majesty in Council, because it was considered to affect a reserved matter.
If both Houses of Parliament agreed to the Resolution, then the Bill would not be presented. But if your Lordships disapproved of the Resolution, then the Secretary of State could lay the same Resolution again, 10 days later, which would have the effect of overruling your Lordships. But in this case it would not be the unelected House of Lords overruling the elected House of Commons. It would be a case where the House of Lords thought that the Assembly was right and the House of Commons was wrong, and it would be another place overriding the House of Lords which was supporting the elected Scottish Assembly. So that there would be a conflict three times over. The House of Commons would be in conflict with the Assembly, the House of Commons would be in conflict with the House of Lords and the House of Commons would be in conflict

1669
with the Assembly and the House of Lords together.
In those circumstances, the Bill states that the House of Commons—which means, in effect, the Party forming the Government in the House of Commons—should always prevail. I do not believe that that is a happy recipe for resolving a conflict. if these Amendments were accepted and the normal Parliamentary processes were used, and if both the Assembly and your Lordships' House were wrong and the Bill did affect a reserved matter, then the United Kingdom Government could introduce a Bill to negate the Scottish Assembly Bill.
It is worth while if we remember that the power of Resolution refers only to reserved matters, and reserved matters must affect Scotland. They are not reserved matters if they affect England only. But the Scottish Assembly can pass Acts which, though they have no legal authority in England, nevertheless will affect England or the services which England provides.
Let us suppose that the Scottish Assembly passes a Bill to stimulate housebuilding in the Borders, which they would be perfectly entitled to do by, say, offering substantial fiscal incentives. All of the builders in Northumberland may decide to go and build houses in the Borders of Scotland, and Northumberland would be disadvantaged. The Assembly Act will affect England. Again, if the Scottish Assembly decides, for example, to close down a cancer unit in a hospital in Edinburgh in the full knowledge that there is an excellent one in, say, Newcastle, all of the cancer patients who would have gone to Edinburgh might well, under these circumstances, go to Newcastle. This would be bound to affect English cancer patients in the North of England. In these cases, where the Scottish Assembly takes action which materially affects England but which is not a reserved matter, the Secretary of State is powerless. The only way to redress the situation for the English is for the Government to introduce a Bill specifically repealing the Scottish Assembly Act.
If these clauses go unamended, therefore, we have the absurd situation that where the Scottish Assembly passes a Bill which affects a service in England over which the Assembly has neither
1670
concern nor jurisdiction and over which the House of Commons might be expected to offer protection, the House of Commons can do nothing short of introducing a Bill which then has to have the approval of both the House of Commons and your Lordships. But where the Scottish Assembly passes a Bill which affects a reserved matter which, although it is reserved for the United Kingdom must affect Scotland, then another place can overrule the Scottish Assembly and the House of Lords as well.
I do not believe that this is right or sensible. Nor do I believe that it is right, sensible or proper to alter the Constitution in the manner which the Government propose in this Bill, because it is not the right place to do it. It is restricting the authority of Parliament as Parliament and shifting the unbridled emphasis to the House of Commons and, ipso facto, by means of the Whips, to the Party which forms the Government of the day.
I do not believe that the people want this. There is a growing and genuine fear of the massive and increasing power of the Executive and of the gradually receding effect of the influence of Parliament. In a turbulent world where everything seems to be shifting, it is vital that we should try to retain the people's trust in and respect for our Parliamentary system. Even in the lifetime of this Parliament we have seen, on the hybridity issue of another Bill, the acknowledged and accepted Parliamentary processes thwarted and even subjugated for a matter of immediate convenience. People had their due rights removed from them. It was only the existence of a second Chamber—not its powers, not its composition, not even in the end the contribution of its Members but the sheer fact of its being there and its inevitable involvement with the Parliamentary process—which eventually caused a wrong to be righted, however inconvenient that may have been to the Executive arm of the Government of the day.
If there are to be Amendments to the Constitution—and I do not deny the case for saying that there should be, although I should not seek to argue the case either way on these Amendments—the right way for that to be done is by a special Parliament Bill. In 1968, the

1671
then Government, which was formed by the same Party as the one which is now in power, thought that there should be alterations to the Second Chamber, and they published a White Paper depicting their views. Contained in this White Paper was the suggestion to limit the power of the second Chamber over subordinate legislation in the very manner in which the Government seek to do it in this Bill.
I should be the first to acknowledge the consistency of the present Government in relation to the views of their predecessors in 1968, but the cardinal point of difference and importance is this: the Government of that day, in seeking to get approval for their measures, quite rightly introduced a year later the Parliament (No. 2) Bill 1969 which, among other things, contained this proposal. But Parliament never approved that Bill; another place never approved it; another place never approved the proposals contained in it. The Bill foundered in another place, and all of the proposals with it. Those very proposals, which were unacceptable to another place, have now found their way into this Bill and have not even, by virtue of the guillotine, been considered by another place.
I do not blame the Government for trying to reintroduce these proposals if they wish to do so, even if one may disagree with them. But what is wrong is that the Government should introduce these proposals through the back door—not in a Parliament Bill but tucked away at the back of a devolution Bill—and then guillotine the Bill so that those proposals are not discussed. Whether or not the suggestions of the Government are right or wrong, let us make no mistake about the fact that they will have a profound effect on the nature of Parliamentary business and the impact which each and either House has on subordinate legislation. They will certainly act as a precedent and, once established in this Bill, as sure as night follows day, the same provisions will appear in other Bills.
Whether this is a good or a bad thing, whether or not we approve of devolution as portrayed in this Bill, the one thing which surely must command the approval of all parts of your Lordships' House,
1672
wherever we sit and whatever our views or allegiances may be, is that at least another place should be permitted the right to consider such a far-reaching constitutional alteration. That is why I hope that your Lordships will agree to the Amendments which are set down in my name and in the names of my noble friends, which will enable another place to discuss this matter and say whether or not they agree to these proposals. I beg to move.
5.28 p.m.
Lord WIGODER: May I be allowed to ask the noble Earl one question in order to find out whether or not we have understood correctly these Amendments in this very difficult and troublesome area. Is it correct that the effect of the noble Earl's Amendments, if carried, would be that if a Bill passed by the Scottish Assembly came up for consideration under the terms now proposed it would become law if the unelected House of Lords said so against the direct wishes of the elected House of Commons? If I have understood correctly the noble Earl's Amendments, that would be the position, would it not? What, then, becomes of his observation as to the principle that nothing shall become law unless it is approved by both Houses? In what I entirely conceive to be a novel situation, where for the first time we have a devolved Assembly, would it not be wholly undesirable that the issue as to whether a Bill should go on to the Statute Book should be left to the House of Lords rather than to the House of Commons?
Earl FERRERS: As the noble Lord has asked me a direct question, I should say that the answer is that the Assembly will have passed an Act which should become law. It is the Secretary of State's business to say whether or not he thinks that it should not become law. If he were to produce a Statutory Instrument, it would have the same effect as all other Statutory Instruments. It would have to be agreed by both Houses, and the chances are that both Houses would agree. The problem will be if one House does not agree. Then. as I said earlier, the elected House of Commons would be disagreeing with the elected Assembly and the House of Lords.
Lord WIGODER: I am right (am I not?) that, if there is disagreement,

1673
under the Amendments of the noble Earl the last word will be with this House and not with the House of Commons?
Lord WIGG: I find no difficulty in accepting the view of the noble Earl that he finds the Bill wrong. So do I. It is hydra-headed monster and every time one takes a layer off it and understands it, its wrongness becomes ever more evident. The noble Earl wants the Committee to take a decision on a constitutional question. Because I do not understand constitutional questions, may I be allowed to put it into language that I do understand?
It seems to me that any legislative Assembly worthy of the name must carry on its affairs on the basis of responsibility. The great difference between this House and another place is that there are no Standing Orders here, so that day after day Questions are put on the Order Paper to Ministers on subjects for which Ministers are in no way responsible. Up gets the Minister and off the cuff—or if it happens to be in his brief, with advice—he gives an Answer. It does not matter very much because of course our affairs are not very closely reported; but a legislative Assembly which attracts public attention, and which has its roots deep in the society which it seeks to serve, will not be quite like that.
Yet it was revealed, almost by way of an afterthought last evening, that the new Assembly, when it comes into being, will be able to discuss any subject it likes; it will be able to discuss unemployment in Cornwall, recruiting in Wales, financial matters—no holds barred. It can have discussions on any subjects, devolved or not devolved. In other words, it is an educative Assembly and it exercises authority (if it has any authority at all) not only in terms of what it enacts but in effect the extent to which it educates public opinion. The folly of this Bill starts at its roots—just there. It is an Assembly. Either it will be a mere talking shop in which people talk and nothing happens, or they will talk in the hope that it will have some effect. If it has some effect, then it will produce the ultimate nonsense; that is, the fruit, not of un-wisdom but of barefaced political stupidity which has drifted into a situation in which we can only say
1674
of those who enacted it—and we can only use the words at the first Station of the Cross—
"Father forgive them, for they know not what they do".
I would suggest with great respect that this House is only now beginning to find out after discussing hour after hour, day after day, some of the proposals that this Bill contains. The noble and learned Lord, Lord Wilson of Langsidc, received a reply last night which he said made him uneasy to hear because he had not considered the point that it was possible for discussions to take place on devolved subjects. That is where the folly lies.
I wish to say one final word. I lost a little interest in these proceedings, because I was tired of listening to debates which ended with the words, "I beg leave to withdraw the Amendment". What about a vote? If the Conservative Party on this occasion, having got to this hurdle, will vote, I will vote with them—for what that is worth—but I hope that at least on one occasion the protests that are made will be taken into the Division Lobby. At the Report stage I shall try to put right the nonsense of the Assembly having the power to discuss any subject, irrespective of whether it has any responsibility. But sufficient unto the day is what we can do this evening and that is to vote on this and condemn it for the piece of nonsense that it is.
5.35 p.m.
Lord BOYD-CARPENTER: Having sat opposite the noble Lord, Lord Wigg in another place and here for something in excess of 30 years, I have had a new experience this evening; I have listened to a speech from him with which I wholly agree. I only hope that that novel pleasure will be repeated more frequently in the future. However, I think it is true in more than the usual sense to say that the noble Earl, Lord Ferrers, has done this Committee a service in moving this Amendment, because he has brought out the fact that this clause as it stands, and invoking as it does for the first time the effect of Clause 72 of the Bill, seeks to do something which goes far beyond Scotland.
The point of this Amendment—apart from one point made by the noble and

1675
learned Lord on the Liberal Benches. about which I shall say something in a moment—is that it does not affect Scotland. By invoking Clause 72, Clause 35 as it stands shifts the balance of the Constitution by seeking to effect, through the machinery of the Scotland Bill, what is basically a change in the series of Parliament Acts. Whatever view one takes—and I know that in this House there are many views taken as to the relative positions of the two Houses—I would hope that we would really be unanimous in the view that even if this were the right thing to do (and I really do not think it is) this is manifestly the wrong way to do it. Heaven knows this Bill tackles a big enough problem in seeking to set up a Scottish Assembly and devolve much authority to Edinburgh. For it to take on —and I am afraid I must say surreptiously—Amendment of the Parliament Acts, is really putting on to it a load which might well involve for it the same fate as that of the measure to which the noble Earl referred; that is, the Parliament (No. 2) Bill of the 1960s.
This provison, as I understand it, of Clause 72 invoked here in Clause 35 disturbs the existing position under the Parliament Acts, under which both Houses have co-equal powers of control over delegated legislation, save of course in respect to those purely financial measures which only require to be laid before the House of Commons and which do not come here. But in the case of measures which are laid before both Houses the control of both Houses under our present law is a reality. In the context of this Bill, in respect of some very important matters, it is proposed that the co-equal power in this House with the House of Commons should be cut down to a delaying power of some 10 days; in other words to annul it.
It is perfectly true that if the Bill goes through in its present form this would apply only to certain orders made under the present Bill. It would of course cover the enormously important Order in Council to be made in the light of the referendum, as to whether to bring the Bill into operation at all, and it would apply to the provisions of Clause 35 and to certain other provisions. But once this has been written into the law, as the noble Earl has said, it will be a precedent.
1676
"Twill be recorded for a precedent and many an error by the same example will creep into the State. It must not be ".
If there is an argument for doing it here, there is plainly an argument for doing it in other important measures. If there is force in the point raised by the noble Lord, Lord Wigoder—that nega? tively if we take this out, this House could reject a decision of the House of Commons—that is true right over the scope of delegated legislation. If the noble Lord's objection to doing it here is a valid one, it is, as I shall seek to show, even more valid over the whole of the rest of the field, because at least in this case the problem is not as bad as he suggested. I can understand the attitude of the Liberal Benches because it would be the unelected House overruling a decision of the elected House. But this would only arise in this particular context where the elected House at Westminster was seeking to overrule the elected House in Edinburgh. There would at least be an elected House on each side, whereas in most of the cases where the same powers continue to exist, that situation does not arise. It would there be a straight situation of the unelected House rejecting the decision of the elected one.
I suggest to the noble Lord on the Liberal Benches that if his point is right in this context of this Bill it must be stronger elsewhere. I would equally suggest to him, as a distinguished lawyer, that he must feel, surely, that if this is something that ought to be altered then it ought to be altered in the proper way after full discussion of a constitutional Parliament Bill in both Houses and not by a side-wind as part of a measure for devolution in Scotland.
I would add to that, on the broad issue of the exercise by this House of its current control over delegated legislation, that this House has exercised great discretion. Indeed, as my noble and learned friend Lord Hailsham of Saint Marylebone said on Second Reading of the Bill, we have not deserved this affront, because no one has ever suggested that this House has abused its current powers. I think we are entitled to an explanation from the Government as to why in this particular case they are seeking so drastically to curtail the powers of this House, and to answer, too, the second question, that if they succeed in doing so here what logical reason is there why they should not seek

1677
to do so on every other major Bill involving powers to make Statutory Instruments which they bring forward? What is the distinction here? What is the difference which causes them to propose so totally different treatment of the powers of this House in respect of delegated legislation in regard to Scotland as compared with the whole of the rest of the field of government and of legislation?
It is an extremely good thing that this matter should have been brought to light, because very little attention has so far been paid to it, and yet I think once it is brought to light, as it is by my noble friend, its significance and importance are only too apparent. I can only say that when the Bill started it was not apparent, even evidently to Ministers. I have in front of me the Official Report of this House for 9th November (column 257), when the Bill had already been introduced in the House of Commons, and the question was raised on the Address as to how the Statutory Instrument, the Order in Council, to bring the Bill into operation after the referendum would be handled. In reply to a question of mine the noble Lord, Lord Harris of Greenwich, quoted from the then Explanatory Memorandum to the Bill:
"The first order bringing the Bill into operation is to be approved by both Houses of Parliament and the Bill provides that this order cannot be made until a referendum has been held in Scotland on the question whether the provisions of the Act should be brought into effect ".
He added:
"There is a similar provision concerning the Wales Bill".
At this point I am reported as having intervened and asked:
"My Lords, will the noble Lord allow me to ask whether that means that the order will be subject to the Affirmative Resolution procedure?"
Lord Harris of Greenwich replied:
"Exactly, my Lords".
Those who know the noble Lord, Lord Harris of Greenwich, know that he is a man of the most meticulous care, probity and a desire accurately and faithfully to serve this House; if I may be allowed to say so, having had the pleasure of taking part in debates on several occasions, I have a special admiration for the way he does it. Therefore, that is a very clear indication, even at that stage when the Bill had already been presented, because the Memorandum was quoted, Ministers themselves did not appear to realise that
1678
it contained a power, an astonishing power, to truncate the authority of this House in these matters.
As I began by saying, I agree very much with the noble Lord, Lord Wigg; this is not a provision which should be allowed to stand. It has nothing whatever to do with Scotland. This cannot be represented as seeking in any way to go against the decision to devolve authority to Scotland, much though many of us may think that that is in itself a mistake. It cannot be urged that this is a diminution of the power of the Scottish Assembly. Indeed, taking again the example of the noble and learned Lord on the Liberal Benches, this Amendment would in fact strengthen the position of the Assembly in the case of its coming into conflict with Westminster.
Therefore, I would suggest to the Committee that we should say quite firmly to the Government: "We should like an explanation as to why this provision has been inserted in this Bill, and as to whether it is intended to constitute a precedent to be followed in other Bills". Also we should say to the Government: "If you have proposals for altering the relationship and powers of the two Houses, there are many people on both sides of this House who have open minds on this and are more than prepared to look at proposals, provided they are put forward properly, in a properly, fully debated constitutional Bill confined to those issues, and not sought to be smuggled in as an apparently small series of phrases in an enormous measure dealing with totally different matters."
5.47 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: Before the noble and learned Lord replies, as I hope he will do ultimately, to this Amendment, may I make a special appeal to the Government in this matter. As the Committee will remember from what I said on Second Reading, I am particularly anxious that this Bill when it ultimately emerges from the Parliamentary process should be submitted to a referendum. I believe the Government have the same desire, and probably the Liberal Party too. It may be that I hope that the result of that referendum will be somewhat different from the result others hope for. But, having given this a great deal of thought, I have come to the conclusion that the

1679
only way out of the constitutional tangle we have got ourselves into by what, from my point of view, is a bad Bill is to let the referendum process go forward and see what comes of it. I beg the Government not to insist on this rather disreputable procedure which this Amendment is designed to get out of the Bill.
May I say this to the noble Lord, Lord Wigoder, and indeed to the noble and learned Lord the Lord Chancellor. For 50 years now, and for very much longer indeed since the matter was referred to as long ago as the Interpretation Act 1889, this House has had co-ordinate jurisdiction with the House of Commons in matters of subordinate legislation. It has enjoyed that power, and it could at any time during that period of a century, and I think longer than that, have held up the whole business of Government by successively rejecting every Resolution, either on a Negative or a Positive Prayer; it could have done so. I do not believe the Government could find a single case where this House has misused that power. There have been cases, of course, where the House has tended to take a different view from the House of Commons in this kind of matter, but it has never pressed its view, and there is not the smallest reason to suppose that it would press its view improperly in this particular matter—quite the contrary
In the case of the bringing into effect of the Bill after the referendum—assuming the referendum went the way I do not wish, and goes the way the Government do wish—I cannot conceive of this House, taking the responsible view that it has already done for over a century, blocking what would then be the wish of the Scottish people and the Government of the day, ex hypothesi by whichever side, by that time, the Government might be represented. I do not understand on what evidence it is supposed that that situation could arise.
To take this particular case, as my noble friend Lord Boyd-Carpenter has pointed out, the peculiar and unlikely situation which is envisaged by the particular clause to which the first of the series of Amendments refers is the case where the elected Scottish Assembly came to one view and the elected House of
1680
Commons came to another. I cannot imagine this House pursuing a matter beyond the point at which it had made its opinion plain, with the result of holding up the working of the Constitution. I should like to know by what train of reason the Government think that they are dealing with a real situation —if they were to try to insist upon this most objectionable insult to this House. What are they thinking of?
Of course it would be used as a precedent in a sporadic series of Bills introduced by one Party or the other, whichever was in power. Once it has been done once it will be introduced in one Bill and perhaps not in another. If they want to alter the relationship between the Houses, which has worked perfectly well for over a century, to the disadvantage to the House of Lords, that would be a great pity. It would affect much of our ability to criticise Ministers. Supposing that they want to do it, why not do it as part of a general constitutional measure, altering the situation as between the House of Lords and the House of Commons? Why must they try to bring it in by the back door? It cannot be right.
I should have thought that if the Government were really sincere in wanting to get this Bill on to the Statute Book, and wanting to get the referendum process complete, they must—I beg them to believe—get rid of this series of objectionable little clauses, which are proposed only out of spite and which have not so far even been discussed in the House of Commons. I do beg this of them. This is not said with a view to humiliating or upsetting the Government, or saying many of the nasty things about the Government that on other occasions I should be only too willing to say. It is said with a perfectly sincere desire to beg the noble and learned Lord the Lord Chancellor—whose influence over his colleagues is so large and who is so much respected and loved in this House on all sides—to say on behalf of the Government that, on reflection, they realise that this causes profound offence and can only hold up the progress of legislation to which they are, at any rate, sincerely attached.
5.53 p.m.
Lord SHEPHERD: The noble Lord, Lord Hailsham of Saint Marylebone,

1681
spoke of the concurrent powers, particularly over subordinate legislation, and the way in which your Lordships' House has treated it—I think he used the words, "in a satisfactory way". I wonder how satisfactory it is. I shall come back to that in a moment. I share, I think, the general unease at the proposals which are, in the Bill. I agree with the noble Lord, Lord Boyd-Carpenter, that it is undesirable to change the relationship and responsibilities of the powers between the two Houses in a Bill of this nature. But the reality is that it had to be put in this Bill because we were dealing with a situation of a Scottish Assembly with reserve powers, or where the Assembly may be legislating in a way that is contrary to the general interests of the unitary State. It was then felt, as I understand it, that there should be the power of the Secretary of State to withhold the sending of the Bill to the Monarch for the Royal Assent, but that before he could do that he would be subject to Parliamentary scrutiny and assent.
We have heard in Committee of the possible conflicts between the Scottish Assembly, if the Scottish National Party were in power, and a Labour or Conservative Government in London. I suspect—and I do not think any noble Lord would challenge me—that the only possibility of conflict between the House of Commons and the House of Lords on an action taken by the Secretary of State is when there is a Labour or Liberal Government in the House of Commons and a Conservative majority in the House of Lords.
I want to come back to what the noble Lord, Lord Hailsham, said about what he called the "satisfactory procedures"— the satisfactory approach of your Lordships' House to subordinate legislation. This House recognised that, in the bulk of subordinate legislation, if your Lordships' House declined to pass an order then there was no going back, because an order may not be reintroduced unless it is so drafted, as I understand it, according to the Standing Orders, as to be substantially different from the previous order that had been rejected.
The noble Lord, Lord Carrington, shakes his head. However, may I remind him of a very critical moment in your Lordships' House on the Southern Rhodesia Order. I would ask him to
1682
refresh his memory; the incident is indelibly fixed in mine. My noble friend Lord Shackleton, who was then the Leader of the House, replied to that debate. The noble Lord, Lord Carrington, raised the question of what would be the position if that order was defeated in this place. Did that mean that sanctions against Rhodesia could not be fulfilled, and all our obligations to the United Nations could not be complied with? My noble friend could well have said that there was such serious doubt that he would have to say to the House that that would be the position. He did not do so. But the noble Lord, Lord Carrington, rose and asked that specific question. I think that my noble friend then said, Yes, he thought a new order could be laid. I suspect that if Lord Shackleton, as Leader of the House at the time, had said it would have been impossible to have laid another order, we would not have had a Division that night.
This House has passed many orders. It has had many fiery debates, but it has always been reluctant, as the noble Lord, Lord Hailsham, said, to take a vote on them. I would support the procedure that is in this Bill. With the noble Lord, Lord Boyd-Carpenter, I would much prefer to see it in a Bill on its own, because at least it would give this House the real and only opportunity, on subordinate legislation, to go into the Division Lobbies in support of the strong views that have been held, which it is not able and willing to do today.
I suggest that with the procedure that is in this Bill, your Lordships' House, if it felt strongly in support of the Scottish Assembly in opposition to the Secretary of State, at least would be able to go into the Division Lobbies and record its views in the strongest terms possible, not just leaving it to the voices of those who participate in debates and to another House to take a view of what had arisen. If it then decided by Resolution, so be it. Whatever we may think of ourselves, the House of Commons is still the only elected body. The noble Lord, Lord Carrington, and some of his friends would like to see an elected second Chamber. There is a strong case for it, but the noble Lord, Lord Carrington, wants an elected Chamber, as I understand it, because through an Election it can have authority. We are not elected.

1683
We have not got the authority to withstand the will of the House of Commons.
Lord CARRINGTON: The noble Lord has chosen a rather odd example to argue that it is impossible to introduce a Statutory Instrument again, if this House defeats it on the first occasion; because on the occasion of the Rhodesia order, when we divided against it, I specifically said that your Lordships on this side of the House would not reject it if it was introduced again. Within a fortnight the Government introduced the order.
Lord SHEPHERD: If the noble Lord will look at the Standing Orders, I believe he will see—my noble friend the Lord Chancellor will correct me if I am wrong—that the order cannot be in identical terms to the one which has been defeated, and I question very much if a Resolution, or whatever it may be, to deal with the Secretary of State's decision could be drafted in such a way that it would meet our Standing Order.
Lord CARRINGTON: It falls, and we have got sanctions on Rhodesia.
Lord MACKIE of BENSHIE: May I make a point? Personally, being very pro-Assembly, I should be delighted if this Amendment were passed because it would at least override the powers of the Government in that, if the legislation was legal, it would give it more of a chance of coming into being if the two Houses disagreed. I should like information on the constitutional question. Surely, if the Amendment is carried, one will have a new constitutional situation also in that legislation will become law because the two Houses disagree. As I understand it, if the two Houses disagree, the legislation will go forward. That surely—may I ask the noble and learned Lord, Lord Hailsham?—would be a new constitutional position.
Lord HAILSHAM of SAINT MARYLEBONE: The noble Lord has it completely upside down. The situation is that, if the Assembly passes a law which is otherwise legal, it has the complete right to see that law enacted by submitting it to Her Majesty for consent and that consent is given by an Order in Council. There is an exception to that right which
1684
is given to the Assembly—that is, that Parliament, if both Houses are agreed, can veto it at the suggestion of the Secretary of State. If Parliament fails to give that right to veto it, or proceeds to veto it, then the Assembly measure will become law. That is the only way in which it could be legitimately put.
Lord HARMAR-NICHOLLS: As I understand it, the argument put forward by the noble Lord, Lord Shepherd—and I do not disagree with him—was that if anybody is going to be supreme it should be the House of Commons because it is an elected Chamber. On those grounds, I should have thought that, if we pushed this to a vote, it would be in our Lobby. It is vital on a matter as important as this that the House of Commons should give a considered, detailed decision, and it has not done that. This is one of the matters which came under the guillotine, so we do not know what the House of Commons view is. It still figures in the Bill because it is the victim of a procedure—the guillotine.
The noble Lord, Lord Mackie, said he would be prepared to accept this Amendment. He can help to do that by going into the Lobby if this is not acceptable to the Government. I rather anticipate that the noble and learned Lord the Lord Chancellor is going to be in a position to say that he accepts it because I do not believe that what is now the situation is what the Government would want. If you compare it to the real thing, this is one-Chamber Government by stealth. If we are going to have one-Chamber Government at any time—and I hope we shall not do that—let us have it done properly, and let us ask this Government to look into the full Parliamentary procedure and have it examined in detail. There are certain supporters of the Government Party who would like to have a one-Chamber Government, but I do not believe that that is the view of the Government as it now exists. I cannot see that they would be a party to wanting to get by stealth something as important as this.
On Second Reading, I said that this was not a Scotland Bill. I called it the United Kingdom Dynamite Bill. This is the dynamite that I had in mind. If this precedent is allowed to go through it will affect the whole of the United

1685
Kingdom. It has nothing to do with Scotland. This is on the narrow Scottish point as put by the noble Lord, Lord Wigoder, and I would not have felt very disturbed about it. It would not be an unelected House of Lords overruling the elected House of Commons; it would be the elected House of Commons overruling the House of Lords, who would be supporting an elected Scottish Assembly. If the Scottish Assembly bring in a measure which is within their powers, they are just as much as elected body as is the House of Commons. It may be setting us on a new road. If we have to have this sort of a Bill, it may not be a bad road. If you have an elected Scottish Assembly genuinely holding one view and an elected House of Commons holding another, who better to be an arbiter as to which elected view shall become the law of the land?
It could well be that we are moving into an era where the House of Lords —in addition to being a revising Chamber and in addition to being part of Parliament in order to add the knowledge of its members in the effort to bring about good Bills—will, if we are to have these devolutions to Scotland and to Wales and goodness knows where else, become the arbitrator among elected bodies. It may well be that that is the kind of thing we could keep in mind.
The other answer that I could give to the noble Lord, Lord Wigoder, is that the actual steps to implement anything arising from this would have to be taken by the Secretary of State. If the Secretary of State is still in the House of Commons there will be a great power for seeing that real thought is given to whatever is the expressed view of the House of Commons. I would remind your Lordships of the words of my noble friend Lord Ferrier. He set out a situation, not an exaggerated situation but a most likely one under certain conditions that would flow from an Assembly, and he said this (I took it down):
"We would be in a situation where the House of Commons would be in conflict with the Assembly; the House of Commons would be in conflict with the House of Lords; the House of Commons would be in conflict with the Assembly and the House of Lords together ".
If that is what the Bill might mean, if that is not dynamite in terms of constitutional Parliamentary government I do not know what is.
1686
I remember my noble and learned friend Lord Hailsham took me to task in that gentle way of his for using "dynamite", and, then I intervened when he himself quoted in his Second Reading speech a very hefty bit of dynamite and said it would have to have a long fuse. I have never been put off recognising the danger of dynamite because of the length of the fuse. You may not be blown up today or tomorrow, but I do not feel that a delay in being blown up for a month or a year is very much of a reason for allowing the danger to exist in the first place. I would suggest that the Government ought to have this part of this Bill sent back to them unless there is a word from the noble and learned Lord the Lord Chancellor asking to have it back by accepting the Amendment. I think we ought to insist on sending it back to them in order that they can give a considered and detailed view on it.
I have been in your Lordships' House for only a short time, but I was very disturbed at the way in which your Lordships allowed your powers to be taken away in last year's Finance Bill. In last year's Finance Bill, on a Money Bill which is widely the perrogative and responsibility of the other place, Parliament, including this House, allowed to be tacked on to it powers which interfered with our freedom and liberties and the law of trespass. We allowed in that Money Bill—and it was not deemed to be a Money Bill when it first came to us—the power to allow people to break into one's house, break into one's desk, to trespass and to do all sorts of things. I am not necessarily saying that what they wanted to do would be wrong, but that is a power which ought not to have been given until there had been full and detailed debate in the House of Commons and your Lordships' House in the full, true and Parliamentary fashion. I believe that that was the beginning of one-Chamber Government on matters outside the actual extraction of money.
This is a second step. I remember the old Irish saying: "If I am cheated once, I forgive him: if I am cheated twice then I don't deserve forgiveness myself." The Lord Chancellor must recognise the constitutional dangers. What will be said if this is allowed to go through? The details, and even the details of the sort of argument

1687
that the noble Lord, Lord Shepherd, and my noble friends have put forward will be forgotten. If it is allowed to go through it will be said that both Houses agreed that this should happen. The fact that one House never debated it at all and that this House is supposed not to have the same amount of power as the other, will be forgotten. It will be said that, in a constitutional way, this new procedure which turns this into the beginnings of a one-Chamber Parliament was accepted because we let it go through. Therefore, I hope that my noble friends on the Front Bench will make this one occasion when they give satisfaction to the noble Lord, Lord Wigg, so that he can come in the Lobby with us.
6.11 p.m.
Lord WIGG: I am sure that the noble Lord, Lord Carrington, does not want my support; I am equally sure that the noble Lord, Lord Shepherd, is wrong. It cannot be true that the Standing Orders of this House can override the procedures governing the laying of a Statutory Instrument. In my submission the Government can table a Statutory Instrument on every odd day throughout the year, including Saturdays and Sundays, and the House of Lords can meet on all the even days and cancel it, and it can then be introduced the next day. The Standing Orders of this House do not make twopenny worth of difference. I hope that I have killed that piece of constitutional nonsense once and for all.
I should like to take up one other point. I can understand the possible embarrassment of the Party opposite in wanting to call a Division. I suggest to the noble Lord, Lord Shepherd, that he and I call the Division and go into the Lobby as Tellers together, because nobody can charge us—neither he nor 1—with wanting to perpetuate a Conservative majority in this House. I would go a little further than him; I will vote with both hands to abolish it in your Lordships' House. However, so long as it is here, it ought to be used.
If there are ever any complaints about the abuse of the procedures in this House, I am one who has abused them. I defeated on Second Reading a Private Member's Bill from another place and I
1688
am very glad that I did so. Therefore, if today the noble Lord, Lord Shepherd, will join with me in calling a Division and going in as a Teller I hope that we shall be supported by all the Party opposite, all the intelligent Members on this side and all the Cross-Benchers. It will then be perfectly clear that we are saying to the Government: "If you want these powers you can have them. We shall vote for them, but do not do it by the backdoor. Do it by introducing a Bill that faces up to the problems, discusses the problems and is passed by another place before it reaches here".
6.14 p.m.
The LORD CHANCELLOR: I respectfully agree with the noble Earl, Lord Ferrers, when he says that the proposals in the Bill that we are debating this evening and the Amendments that we are now considering, undoubtedly raise important constitutional issues as to the relations between the two Houses of Parliament; between the Assembly and Parliament; and between the devolved Administration and the Government. As I think was conceded in last week's fascinating debates on judicial review, the Bill contains important constitutional proposals calling, I submit, for reconsideration of our present constitutional practices and requiring consideration of constitutional changes which may prove necessary to meet the new situation that the Bill, if it becomes an Act, will create in order to make it effective.
The awareness that we were faced with a situation calling for constitutional change was, perhaps, most dramatically illustrated last week when two noble and learned Lords brought forward a proposal for a constitutional council and a constitutional court. I am bound to say that I had never heard of that before, so it might have been said about that proposal that if it was not surreptitious at least it was unheralded. However, what I do not understand about the complaint that what is proposed by the Government is surreptitious, is that the proposals were described and contained in the Scotland Bill before the Commons. They were defined and described in the Explanatory Memoranda of the Commons' Bill and your Lordships' Bill. They had previously appeared in the Scotland and Wales Bill published in November 1976.

1689
This proposed change has been on the Lapis and under consideration for years. Of course, as has been said, it had its origins in the ill-fated Parliament (No. 2) Bill of 1968, a Bill which, incidentally, had the support of both Front Benches of the day in another place and was not without friends who are now distinguished Members of your Lordships' House. It is true that I should also say that your Lordships have present those who were then right honourable gentlemen who did not agree with their own Front Bench. However, the proposal was introduced in the Parliament (No. 2) Bill. In fairness I must say that, due to the strange events and strange alliances that occurred in another place, the relevant clauses were not reached. The other place reached only Clause 6 of the Bill. Therefore, I cannot claim that the noble Lords who were then supporting the Bill have committed themselves in advance to this proposal. However, it emerged as a serious proposal in that Bill which was, as I have said, supported by both Front Benches at that time. Therefore it has a not dishonourable antecedent. There is nothing disreputable about it. Perfectly honourable and serious consideration was given to what should be done in the new constitutional scene.
I agree that, of course, one would prefer to make these constitutional changes affecting the relationships between the two Houses in a constitutional Bill dealing with such matters. However, we are faced now with the practical necessity of seeing what can best be done to make—as the noble and learned Lord, Lord Hailsham of Saint Marylebone, has said—the Bill as effective as we can and let the people of Wales and Scotland decide in the referendum whether they want it or not. This is an attempt to do just that.
I apprehend that there is a general view—I agree that it is not a unanimous view—that there is a need for the proposed override powers which are contained in the Bill, subject to amendment as to the detail of them which we are still considering. We are now discussing how Parliamentary effect shall be given to the exercise of the override powers. What is proposed in Clause 35 and the other relevant clauses is that the other place should be empowered to confirm a resolution that it has passed approving the Secretary of State's intervention, despite your Lordships' House not having passed
1690
a resolution to the same effect. The result of your Lordships' House agreeing with the other place would, of course, empower the Secretary of State to go ahead. I apprehend that that would probably be what would happen in most cases. However, if your Lordships disagreed with the decision of another place and that was maintained, then the result would be that the challenged Assembly measure—which the Secretary of State, the Government and the House of Commons thought might threaten important United Kingdom matters—would become the law of Scotland on the authority of this House, and this House alone, along with, of course, the Scottish Assembly. That is the situation which would arise.
What the clause proposes is not the exclusion of your Lordships' House from the procedures that arc put forward. On the contrary, the matter would come to this House, with its authority and now with its new more public voice in the land. It could vote upon the matter and throw the proposal out. That would be recorded. The stand and view of your Lordships would be known, would be publicised and would be declared. The result of that action by your Lordships would compel the House of Commons to think again about the matter. That is the great service that this noble House renders within our Constitution; it causes the other place to think again, to give second thought to what it proposes.
But, as I said earlier, if what is proposed in the Amendments were to prevail, then we would have a piece of Scottish legislation which the Government of the day, the Secretary of State and the House of Commons all thought would be damaging and prejudicial to United Kingdom interests. The only way of remedying the matter would be by passing an Act of Parliament. Bearing in mind the pressure on legislative time and the delay that that would create, it would mean a very long period of uncertainty in what could be an important measure.
These are serious problems and difficulties and, with great respect to the noble Lord, although I share his anxiety and wish that this matter might have been capable of being dealt with in another way, this is not a disreputable attempt to deal with the difficulty—it is a serious one. However, it is apparent from this long

1691
debate, where the issues have been fully ventilated, that we are here faced with a clear difference of opinion on both sides of the Committee on the matter. Although I hope that I have endeavoured to explain the Government's position moderately, without passion, nevertheless I think that this is a circumstance where the matter must be resolved by a decision of your Lordships' Committee.
Earl FERRERS: The noble and learned Lord the Lord Chancellor has quite rightly said that he has spoken in a moderate way and without passion. He was, indeed, right in what he said. In view of the office that the noble and learned Lord the Lord Chancellor holds, his view is always impressive and no one could have been other than impressed by what he said this evening. He was very quiet. If I may say so, he reminded me very much of something that was once said to the noble Baroness, Lady Llewelyn-Davies of Hastoe, when she was speaking. Someone said to her that she looked very much like a swan—majestic in appearance but paddling away like mad underneath.
The LORD CHANCELLOR: The prospect enchants me. The idea of me being swanlike alongside my noble friend fills me with delight and enjoyment.
Earl FERRERS: Be that as it may, it conjures up all sorts of imaginings in our eyes, but we have the advantage of being able to see the noble and learned Lord. Although the noble and learned Lord put his case clearly and reasonably, it leaves at least me unimpressed for three reasons. First, this sets a precedent and once passed in this Bill it will appear in others. Can any noble Lord really imagine a Parliamentary draftsman sitting down and, when subordinate legislation is being written into the Bill, saying, "Shall we allow the House of Lords to vote on this

Aberdeen and Temair, M.

Boyd-Carpenter, L.

Clifford of Chudleigh, L.

Allerton, L.

Bridgeman, V.

Cochrane of Cults, L.

Alport, L.

Brookeborough, V.

Cockfield, L.

Amory, V.

Brougham and Vaux, L.

Coleraine, L.

Atholl, D.

Burton, L.

Colville of Culross, V.

Balerno, L.

Caccia, L.

Colwyn, L.

Banks, L.

Campbell of Croy, L.

Cottesloe, L.

Belstead, L.

Carrington, L.

Craigavon, V.

Boothby, L.

Cathcart, E.

Craigmyle, L.

or shall we put in the same bit that was put in under the Scotland Bill?". Of course, the choice will not be there, and shortly all Bills will contain this piece of new legislation.
Secondly, as has so often been said, if this kind of alteration is to be made, it would be a constitutional alteration and should be in a special Bill; it should not be in this Bill. I found the speech of the noble Lord, Lord Shepherd, slightly confusing when he said that the advantage of this Bill, as it is, is that the House of Lords can vote, whereas if the Amendments are passed, it cannot vote. He then went on to say—and I found this to be a curious argument—that there is only one elected Chamber, the elected Chamber ought to have its say and the House of Lords ought not to vote. It would seem to me that it would be much better to allow the present system to continue where, although the House of Lords can vote, it takes its responsibilities seriously, and hardly ever does so on matters like this.
The third reason why I would ask your Lordships to support these Amendments is the very simple one that another place has never discussed them. Whatever we may think about these Amendments—whether we think they are right or wrong—another place has never discussed them at all. At least if we pass these Amendments it will give another place that opportunity. Of all constitutional arguments that surely must be one that should carry some weight. At least we should have the approval or opinion of another place and we should not remove that right from them. Therefore, I hope that your Lordships will support these Amendments. I beg to move.
6.27 p.m.
On Question, Whether the said Amendment (No. 330) shall be agreed to?
Their Lordships divided: Contents, 130; Not-Contents, 51.

Cromartie, E.

Kinnaird, L.

Rawlinson of Ewell, L.

Cullen of Ashbourne, L.

Lauderdale, E.

Redcliffe-Maud, L.

Daventry, V.

Lindsey and Abingdon, E.

Reigate, L.

Deramore, L.

Linlithgow, M.

Rochdale, V.

Digby, L.

Long, V.

Romney, E.

Drumalbyn, L.

Lothian, M.

Sandys, L.

Dundee, E.

Luke, L.

Selkirk, E.

Ellenborough, L.

Lyell, L. [Teller.]

Selsdon, L.

Elliot of Harwood, B.

McFadzean, L.

Sempill, Ly.

Emmet of Amberley, B.

Malmesbury, E.

Sharples, B.

Exeter, M.

Mancroft, L.

Shinwell, L.

Ferrers, E.

Mansfield, E.

Simon, V.

Forester, L.

Margadale, L.

Somers, L.

Fortescue, E.

Masham of Ilton, B.

Spens, L.

Gainford, L.

Massereene and Ferrard, V.

Stamp, L.

Garner, L.

Merrivale, L.

Strathclyde, L.

Glenarthur, L.

Meston, L.

Strathcona and Mount Royal, L.

Glendevon, L.

Mills, V.

Gray, L.

Monck, V.

Strathspey, L.

Greenway, L.

Monk Bretton, L.

Suffield, L.

Gridley, L.

Monson, L.

Swansea, L.

Hailsham of Saint Marylebone, L.

Montagu of Beaulieu, L.

Teviot, L.

Mottistone, L.

Torphichen, L.

Hampton, L.

Mowbray and Stourton, L. [Teller.]

Tranmire, L.

Hankey, L.

Trenchard, V.

Harmar-Nicholls, L.

Moyne, L.

Tweeddale, M.

Hatherton, L.

Newall, L.

Vaux of Harrowden, L.

Hereford, V.

Northchurch, B.

Vickers, B.

Home of the Hirsel, L.

Nugent of Guildford, L.

Vivian, L.

Home of the Hirsel, L.

Onslow, E.

Wall, L.

Hylton, L.

Orr-Ewing, L.

Ward of North Tyneside, B.

Hylton-Foster, B.

Pender, L.

Ward of Witley, V.

Killearn, L.

Perth, E.

Ward of Witley, V.

Kilmany, L.

Platt, L.

Wigg, L.

Kilmarnock, L.

Rankeillour, L.

Wilson of Langside, L.

Kinloss, Ly.

Rathcreedan, L.

Young, B.

Amherst, E.

Hall, V.

Pannell, L.

Aylestone, L.

Harris of Greenwich, L. Henderson, L.

Pargiter, L.

Bacon, B.

Houghton of Sowerby, L. Jacobson, L.

Parry, L.

Birk, B.

Jacques, L.

Peart, L. (L. Privy Seal).

Blyton, L.

Janner, L.

Ponsonby of Shulbrede, L.

Boston of Faversham, L.

Kagan, L.

Segal, L.

Brockway, L.

Kaldor, L.

Shepherd, L.

Champion, L.

Kagan, L.

Snow, L.

Collison, L.

Kaldor

Stedman, B.

Crook, L.

Kirkhill, L.

Stewart of Alvechurch, B.

Cudlipp, L.

Leatherland, L.

Stone, L.

Davies of Penrhys, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

Stcabolgi, L. [Teller.]

Diamond, L.

Tanlaw, L.

Donaldson of Kingsbridge, L.

Milner of Leeds, L.

Taylor of Mansfield, L.

Douglas of Barloch, L.

Lovell-Davis. L.

Thomson of Monifieth, L.

Elwyn-Jones, L. (L. Chancellor.)

McCarthy, L.

Wallace of Coslany, L.

Fisher of Camden, L.

McCluskey, L.

Wedderburn of Charlton, L.

Fulton, L.

McGregor of Durris, L.

Wells-Pestell, L.

Gaitskell, B.

Mackie of Benshie, L.

Wigoder, L.

Gardiner, L.

Melchett, L.

Willis, L.

Gordon-Walker, L.

Milner of Leeds, L.

Wilson of Radclifie, L.

Goronwy-Roberts, L.

Murray of Gravesend, L.

Winterbottom, L.

Hale, L.

Paget of Northampton, L.

Wynne-Jones, L

Resolved in the affirmative, and Amendment agreed to accordingly.
[Amendment No. 136 not moved.]
6.36 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 137:
1694
Page 17, line 6, leave out from ("Council") to end of line 9.
The noble Lord said: I beg to move.
Earl FERRERS: I think it right to explain that this is consequential upon the Amendment which the Committee has just carried.
Lord McCLUSKEY: We acknowledge time they will not be interested in it work-that to be correct.
On Question, Amendment agreed to.
On Question, Whether Clause 35, as amended, shall stand part of the Bill?
Lord CAMPBELL of CROY: With my noble friend Lord Strathcona, I put down an Amendment on the Marshalled List some time ago to leave out Clause 35, and this was to indicate that we hoped to have a discussion of this clause, which is a very important part of the Bill, as well as dealing with the Amendments, because some of the Amendments have been on particular legal points. I think it also helped the debates on them to concentrate on those points so that we could keep our general discussion of the clause to this part of our Committee stage.
Clause 35 gives the Westminster Government, and the Parliament at Westminster, power to override legislation of the Assembly; power to override Bills even though they are completely within the competence of the new Assembly. The following clause, Clause 36, is a similar clause, but it gives power to the Government at Westminster, through the Secretary of State for Scotland, to override actions by the Scottish Executive; the new Executive to be formed with the Assembly.
In arguing for the powers in Clause 35, both in another place and so far in your Lordships' House and Committee, the Government have indicated that they regard this clause as a safeguard which would be rarely used. But I would draw attention to the wording of the Bill, in that if it appears that a Bill—that is, a Bill in the new Assembly—is not in the public interest, the Secretary of State for Scotland may propose that it be not enacted by laying an order, the procedure for which we have just been discussing.
That is very wide. There are often arguments in Parliament, both here and in another place, about what the words, "in the public interest" mean, and what subjects are in the public interest or what are not. It is not an easy matter to agree upon. Again I approach the wording of this clause in the light of the possibility of a largish group in the new Assembly being Nationalists, and although they may want to set up the Assembly in the first place, after it has been going for a certain
1696
time they will not be interested in it working.
Yesterday it seemed from some words that I had said that the noble Earl, Lord Perth, and I had an apparent difference of opinion about this. However, I do not think we had any difference at all, because he was saying that the Scottish National Party, the SNP, had stated that they would support an Assembly in Edinburgh at this stage. I had referred to statements—but observing the convention here in Parliament I had not quoted directly from a Back-Bencher in another place in a current Session—from SNP Members of Parliament that they regarded the Assembly under this Bill purely as a staging post towards independence. I think the same thing is happening at this stage; they support it simply as a stepping stone.
Some references have been made to SNP manifestoes, and I have with me the last two. The relevant words which we must have before us have appeared in the last two main manifestoes of the SNP—as I have been a collector of these documents I can assure noble Lords that similar wording has been in their manifestoes for at least 20 years and under the heading "Aims" we read:
"Self-government for Scotland: The establishment of a Scottish Parliament whose authority will be limited only by such agreements as may be freely entered into by it with other nations or States or international organisations.".
They have made it clear that they regard that aim as making Scotland completely independent in everything, including foreign affairs and defence, having a seat at the United Nations, and a Parliament which, as I have described, would be similar to the Parliament of any separate independent State. That was in the main manifesto dated August 1974. In September they produced a supplement to it, for the Election, and the relevant part in that--I think this is what the noble Earl was referring to—read:
"The Scottish National Party will support a Scottish Assembly as a step on the road to full self-government, provided it is to be directly elected and—
this is the important proviso—
"provided it is to possess significant economic and financial powers".
It is clear already that the SNP do not regard the provisions of this Bill as giving them the significant economic and financial powers they mentioned in that manifesto,

1697
so we must bear clearly in mind, as I said yesterday, that the SNP are likely, hastily and merrily, to help set up an Assembly, if this Bill is endorsed by a referendum, but once it has started and been set up they will then be trying to get more power, they will not consider it what they are aiming for, they will not wish it to be stable and they will do everything possible to make the machinery breakdown in order to carry on to independence. That is perfectly clear and that is why it is important that we should examine the safeguards in the Bill. The member of the SNP in this House, the noble Lord who spoke on Second Reading, stated his opposition to the Bill, as I understood it, mainly for the reason I have given; that it did not provide for economic and financial powers.
The main worry about this part of the Bill is that it creates two Executives, the Secretary of State for Scotland and his entourage of Departments, and a new Executive in the Assembly, and there is likely to be a head-on collision when this clause is being interpreted, if it is enacted. It places it on the Secretary of State and therefore the Westminster Executive to decide whether a matter is within the public interest and whether or not they will recommend that the Assembly measure should be allowed to go forward. That is the result of the method of devolution which has been adopted by the Government. All stages of legislation are to be within the Assembly and at the same time their approach in this Bill is to try to draw a line dividing reserved subjects from devolved subjects, and thus we have the many pages of Schedule 10.
When this clause is invoked it is likely to cause ill-feeling, even resentment, in the Assembly. As I said, the Government have indicated that they regard it as a safeguard to be seldom used, but take the example of education. There could well be Bills in the Scottish Assembly which indirectly affect a reserved matter, and that comes under subsection 1(a). For example, the universities in Scotland are not to be devolved; the large majority of those in charge of the Scottish universities, I think including every vice-chancellor in Scotland, are in favour of the universities not being devolved. There is that majority opinion, as there has been for some time, and therefore I am not surprised at what is in the Bill. However,
1698
secondary education in Scotland must be closely linked with universities and it could well be that Bills on education which are introduced into or go through the new Assembly will affect a reserved matter because they touch on university matters or affect universities in England and Wales.
Again, within the sphere of education, consider teachers' salaries and conditions of service. I would remind the Committee that the Burnham Committee, a well-known body which has been operating for many years dealing with salaries, deals with the salaries of teachers in England and Wales, but not with Scotland. Scotland has a quite different system and when the Butler Education Act, which was a milestone in education in this country, is spoken of, people forget that it did not apply to Scotland; it applied to England and Wales but Scotland has always been different and has had a different system of education. Or consider the teachers' associations, the bodies representing them. They too are different. The National Union of Teachers exists in England and Wales but not in Scotland. In Scotland there are several teachers' associations, the chief one being the EIS, the Educational Institute for Scotland.
I am simply indicating that different systems exist and it is exceedingly likely that Bills in this field could appear to be not in the public interest or to be encroaching on United Kingdom matters and therefore to raise the question of the invocation of Clause 35. The teaching profession is included in Schedule 10; the teaching profession is a devolved subject. I presume that means that it covers the salaries and conditions of service of teachers. It could be that the Assembly might legislate on the pay and conditions of teachers in Scotland in a way that was completely out of line with United Kingdom policy, perhaps concerning incomes and causing discontent or adverse reaction among teachers and their organisations in England and Wales. Under the block grant system proposed in the Bill it is perfectly possible for the Assembly to do that.
During discussion of Amendments on this clause the noble and learned Lord, Lord McCluskey, indicated that prints of Bills, when first introduced in the Assembly would be examined, as Amendments would

1699
be when introduced. There would be continuous consultations, with Clause 35 in mind, between representatives of the Assembly and the Westminster Government. That process would be continuing. None the less, the Government's view is that Clause 35 will seldom be used. However, I have given an indication of just one area--education—where I believe there could be considerable friction between the proposals of the Assembly and Westminster because of the effect to which they could lead South of the Border. Certainly with a sizeable group in the Assembly, committed, once it had got going, to try to go much further and extend its powers, there would be deliberate attempts, if that SNP group was in a majority, to try to do things which were not within its competence, or which extended to United Kingdom matters.
In that situation Clause 35 might have to be used much more than the Government at present contemplate, and therefore its terms must be considered very carefully. They have already been amended by the Division we have just had, and in the earlier discussion the noble and learned Lord indicated that there might be possible improvements of the clause as the result of the debates on the Amendments. But we still regard the clause as a dangerous cause of conflict in the future, and we must consider at Report stage whether it should be removed or replaced.
6.52 p.m.
Lord MACKIE of BENSHIE: I think it is a good thing that we are discussing Clause 35 because it is, to a degree, controversial. In supporting the Government in the last Division I had serious doubts about the constitutional position, and about the way this matter was being carried out. But I took the view that Clause 35 was necessary, and that this was the most practical way to implement it. One of the great things about the whole Bill is that it is set about by extraordinary provisions in order to allay the tremendous fears felt in many quarters about this constitutional change after 270 years of unitary Government in the United Kingdom.
It was very interesting that the noble Lord, Lord Campbell of Croy, should refer to the situation in which the Nation
1700
alists had a majority in the Chamber. Along with the noble Earl, Lord Perth, I take the view that responsibility will make the Nationalists very different people. I think it has done until now, and I believe it is a process which will continue. When one talks about staging posts it should be remembered that many of the people who were heading West in the great American rush to the West, upon arriving at a pleasant place did not go on to the Pacific Ocean. They stopped in that pleasant place and settled there. I believe that this may well happen to the Nationalists. I see that the noble Lord was pointing to their Manifesto. My goodness! I could take many Manifestoes from both the Conservative and Labour Parties and point to the difference between their—
The Earl of ONSLOW: Have Liberal Party Manifestos always been filled with words of pure wisdom from 1906 until now?
Lord MACKIE of BENSHIE: Indeed they have, but we have never had the chance to put them into effect. That is what is wrong with the country.
Lord CAMPBELL of CROY: I am most grateful to the noble Lord for giving way, because I do not want any misunderstanding over this. As he knows, I have spoken about Manifestoes, particularly when we were on the question of proportional representation, which is not a system I particularly like or encourage. But what I was referring to here is their aim, it is their raison d' etre, their reason for existence. I referred to the Manifesto only because what I have been talking about there is stated as an aim. I do not think that one can go further in order to get what is their tablet on this subject.
Lord MACKIE of BENSHIE: That is possibly so, but much experience is against that point of view. Furthermore, if this group is elected with a majority in the Assembly and then proceeds to wreck it, to the detriment of the financial wellbeing of the electors, those in the group will not get on too well. I have often noticed that people who have the most amazingly radical ideas, upon getting a little responsibility somehow settle down to some extent and get on rather better.

1701
I should like to take up several other points. The noble Lord mentioned the universities. I believe that the universities are naturally very chary of wanting to put themselves under the Assembly, simply because they are waiting to see what kind of Assembly it will be: whether it will be a narrow, parochial body which would spoil the whole conception of a university, or the kind of body that led to Scotland having four universities when England had only two. I have in mind other matters which this kind of clause is meant to allay.
I am sorry that the noble Lord, Lord O'Neill of the Maine, is not here; I thought that he made a quite significant contribution when he said that the consultation about the legality and the effect ofNorthern Ireland legislation was very thorough. They discussed it thoroughly among themselves, and I think that the phrase he used was, "If there was any doubt, we were on the phone to London double quick." I believe that this kind of situation will grow with the Assembly; at least, I hope it does. If it does not, then we shall need all the provisions in the Bill—but I think that it will grow. The noble and learned Lord, Lord Hailsham of Saint Marylebone, made a point in its favour when he said that over a hundred years—that might be a slight exaggeration—your Lordships' House has fulfilled its duty and its needs although it has not been a logical body. I believe that the same can be true of the Assembly if it gets the chance.
That is why, although I think that the political override powers of the Secretary of State are something of an insult to the intelligent of the Assembly, when the legality is already protected by the appeal to the Judicial Committee of the Privy Council, they are, nevertheless, necessary in order that people may have confidence that the Assembly will not become the disaster that so many people fear.
6.58 p.m.
Lord BOYD-CARPENTER: I seek only to ask a question and to utter a warning. As I understand subsection (1), which was to some extent discussed on my noble friend's Amendments, for the Secretary to have, or feel bound, to act to override the Assembly's legislation, the Assembly measure has both to affect, or possibly affect, a reserved matter, and
1702
—this "and" is important—not be in the public interest. I am aware that the phrase "the public interest" is probably one of the most difficult phrases to construe in any legislation, not least because what is the public interest is very much a matter of opinion which can change with Governments.
But the question I should like to ask is this. Would the fact that an Assembly measure quite seriously obtruded into reserved subjects, although in ordinary terms did no harm, be itself regarded as contrary to the public interest? In other words, if there is no material harm done to the rest of the United Kingdom, yet what the Assembly is doing is driving a coach and horses through the Bill when it is an Act, would that of itself, in the noble and learned Lord's view, he so contrary to the public interest as to bring this subsection into operation? I hope I have made the point clear.
My question relates to the warning I do not intend to weary the Committee with what I said on Second Reading, other than to invite your Lordships' attention to the fact that the whole history of the British Commonwealth for the past 50 years has been that you begin by setting up bodies of this sort, with overriding powers held by a higher authority, with statutory limitations and so on, and that those who constitute those subordinate bodies spare no effort to widen their powers and to assume greater and greater authority. They bang and bang against the restrictions. This has been the common experience for 50 years, that nothing short of complete sovereignty has ever satisfied any of these bodies. This, I would suggest, is very likely to happen with the Scottish Assembly; and, if that scenario be correct, then this subsection (1) is a recipe for ill-will, for friction, for confusion and possibly, though I regret to have to say it, for ultimate Scottish independence.
The Earl of ONSLOW: This clause seems to me to suffer from some of the main defects of the whole Bill. Either it does not go far enough—that is, it does not give the Scottish Secretary of State the power to act almost as a Monarch and say, "I veto this", with no restrictions at all hedging him about--or we should leave it out altogether and say that it will

1703
be just the Judicial Committee. Then it will be up to the judges to say, with the fairness for which they have established themselves a reputation, that it is either within the law or it is without the law.
That would be all right; but I should like to draw to the attention of the noble and learned Lord, Lord McCluskeybecause earlier on he hinted that he thought I was not being serious, whereas I am—the phrase "public interest". I think my noble friend Lord Ferrers illustrated it a little: the English public interest and the Scottish public interest, in the bribing of building workers across the Border for one reason or another, or in the closing down of a hospital just North of the Border in order to lay it on the English taxpayer, so that more of the block grant could be used for something else. I am not saying that the Scottish Assembly will do this automatically—of course not. One is just saying that it is within the bounds of possibility that men of evil disposition could get elected to this Assembly and could be motivated by second-rate thoughts.
There are other things which could give rise to the question: What is the public interest? Is it a Scottish public interest? Is it an English public interest or is it a United Kingdom public interest? And which of those three public interests takes precedence? There is the muddle in the Bill—the fact that forestry is private under the Assembly, and that the Forestry Commission is still retained as a unit. Am I not right on that? I think I am. Things of this sort are going to give rise to terrible argument, discussion and acrimony. I honestly think that it will be easier, either to make the power of the Secretary of State much more absolute or to confine it to the Judiciary. This is a compromise. Normally, I like compromise. Normally, it is the sensible thing to do, to try to compromise between reasonable men. But this is a compromise which, like the rest of the Bill, either goes not far enough or goes too far, and it is a compromise which is open to destructive and anarchic influences.
Lord WILSON of LANGSIDE: I listened with great interest to what the noble Lord, Lord Campbell of Croy, said on this clause—and, of course, as your Lordships know, he speaks with
1704
great authority in this context. Is it not really as the noble Lord, Lord Wigg, was saying earlier, that, as we go through this Bill clause by clause, it slowly sinks in that this is a bad Bill? This is very much the picture which emerges when one looks at the debates in the other place. I close with only this thought, that my greatest regret, which I am sure will live with me all my life, is that I do not have the capacity of Mr. Tam Dalyell, who, at the end of the debate on every clause of this Bill, said the same thing in slightly different words. So I content myself with saying that once again your Lordships can see that this Bill, as those of us who have opposed it from the outset have said, is indeed a recipe for conflict, for confusion and for complexity—a recipe for those three indeed.
Lord DRUMALBYN: May I say just one or two words. I really will be very brief. I do not think one ought to pass from this clause without recalling that, when the Bill was first published, this was the clause which was picked on by the Press—I am talking of the Scottish Press—above all the clauses in the Bill as being the most damaging; that is, this power to override what the Assembly did. I wonder whether the noble Lord could help us on this matter. In our very closely interrelated society, there is hardly anything that you can do which does not affect something else; so it must follow that an awful lot that the Assembly will do might affect a reserved matter, and at that point the Secretary would have to consider, I think in each case, whether or not the enactment of that provision would be in the public interest.
I think the noble Lord will agree that what I have just said must be true. Take, for example, the case of housing. One of the reserved matters is provision by private financial institutions of finance for housing. That is one kind of example; but there are so many things which could overspill into some of the reserved matters. I should therefore be very grateful if the noble Lord could reassure us that there would have to be some substantial effect on a reserved matter before the Secretary of State would even consider using his powers to override. I think that will be tremendously important.

1705
I agree with the noble Lord, Lord Mackie of Benshie, that there is a strong likelihood that there will be close cooperation between the two sides of the Home Civil Service, those who are working for the Secretary of State and those who are working for the Scottish Executive. I am sure that this will be so, and that they will be in close consultation. After all, in many cases they will have been working together for a long time. What I think I am trying to be reassured about is that the advice of both sides of the Civil Service, all the time to their respective Ministers, will be to keep in touch and ensure that, whether something which it is proposed should be done by the Scottish Secretary—Bills being introduced into the Assembly—is something which may have an effect on a reserved matter will be considered at a very early stage; so that the Ministers concerned are advised whether this is likely to be regarded as a substantial interference which would invoke the powers of Clause 35, such that the Secretary of State would then be bound to consider whether or not it was in the public interest to take the very stringent action which Clause 35 allows.
7.10 p.m.
The Earl of PERTH: I shall not keep your Lordships long about this Clause 35, but as the noble Lords, Lord Campbell of Croy and Lord Mackie of Benshie, both interpreted my position in regard to the Scottish National Party 1 think it might be useful if I make my own statement on what I believe about it. First, 1 am not in favour of independence and therefore I do not go along with the Scottish National Party on that point. Secondly, I am not at all sure that, if they got a majority in the Assembly, they would not do all that they could to make use of that majority for purposes which, in a sense, are perfectly legitimate; but my hope is that that majority would have to be a true majority and that is why your Lordships passed and I welcomed the proportional representation. If they had a true majority, which meant that the mass of the people in Scotland wanted more power to the Scottish Nationalists, then, clearly, they have a right not, as I see it, to do everything possible to make the machinery break down but to try to bring this matter to a new issue with the Houses of Parliament together.
1706
My only difference from Lord Campbell is that I think they have said that in the first Assembly, in the event of their not having an absolute majority, they will try to make it work rather to do everything possible to make the machinery break down. I hope that that is sufficiently clear. On the question of Clause 35, I believe that something like this may be necessary, but my hope would be that the Secretary of State would use his power in the most thoughtful way. It is why I think when the Amendment was put down that "shall" rather than "may" would have been a mistake.
I think that what we have to hope is that the Secretary of State realises that in using such power it is potentially a matter of a serious clash between the Assembly and the Houses of Parliament. It is, further, why I think an Amendment which was also put down—Amendment No. 134; namely, a statement of the Amendments necessary in the Secretary of State's opinion to correct the defects in the Bill—is again along the right lines. It is all trying to ensure that if there is a difference it is a difference which is understood and one which can be corrected without the clash which otherwise is feared. So I hope that Clause 35 in some form will stand, but I hope that it is in a form which is aimed always to make the probability of a clash less rather than more.
Lord McCLUSKEY: May I welcome the positive approach from both the noble Earl, Lord Perth, and the noble Lord, Lord Drumalbyn. Much may depend upon which Government is in power and which Secretary of State is responsible; but the Government's intention is that Clause 35, if it is ever to be used, will be used most rarely and most responsibly. For that reason, as the noble Earl has picked out, we put in the word "may" rather than "shall". There are other safeguards: there is that of Parliament. The Secretary of State cannot lightly use Clause 35 because he must go to Parliament and satisfy Parliament that he is right; otherwise he will get into trouble in that way. There is no doubt about this. The Secretary of State must act responsibly and the Bill provides the mechanism for ensuring that he does.
In relation to what the noble Lord, Lord Campbell, has said, I want to pick up two brief points. At one stage he said

1707
that if the Assembly tried to extend their powers and to do things which extended to mattters outwith their competence, then I think that that would be picked up by the vires provisions of the Bill rather than by this clause. He also thought that because of what he described as the difficulties of Clause 35 and the possible conflicts, that was a matter that he might have to consider at Report stage. I thought that the Conservative Party generally, albeit they had reservations about the clause, were prepared to support it. We must wait and see. From the Government's point of view, I cannot emphasise too strongly that Clause 35 is regarded as an essential part of the machinery of this Bill and we shall try to maintain it within the Bill.
Let me be frank with the Committee. We have repeatedly gone to our advisors and said, "Give us more examples, clear examples, of cases where we would be using the override." The difficulty we have had in getting good examples—we have had some; the noble Earl, Lord Ferrers, gave us one or two in the course of his speech on the last Amendment—has made clear that it is difficult, quite difficult, to spell out examples. 1 could give the Committee some; but it is not very easy to find them. I am satisfied after that particular search for good working examples that the kind of situation in which the Government would seek to make a clause of this kind bite is rarely going to arise. Nevertheless, it ought to be there because if the situation arises, one cannot expect to use the ultimate weapon, which is legislation in Parliament. Surely, if this kind of situation arises, it ought to be possible to deal with the matter more shortly. That is why Clause 35 was conceived and that is why we maintain it and that is why, although I hope that it will never be used and cannot conceive of circumstances where it is likely to be used, it is in the Bill.
I have nothing very much to say to the noble Earl, Lord Onslow. If he brings that degree of pessimism and unrealism to bear on the Bill, then he must vote against every provision and vote against the Bill, for there is nothing I can say that will carry him with me.
Lord BOYD-CARPENTER: Would the noble and learned Lord answer the
1708
question that I put as to whether, in his view, the public interest provision would be triggered off by a measure which obtruded substantially into reserved matters?
Lord McCLUSKEY: The clear answer to that is that it becomes a question of degree. If there are effects on reserved matters and they are substantial, then it becomes a matter of judgment for the Secretary of State, and ultimately for Parliament, to say: "Are these interests such that, cumulatively and in degree, they amount to something contrary to the public interest?" That is how the two things will work together in that kind of situation.
7.18 p.m.
Lord WILSON of LANGSIDE: Is the noble and learned Lord going to answer the question which I put earlier? I conceded that it might be my obtuseness or the slowness of my cerebration, but I found it difficult to see a consistency between saying, "If the Assembly does this or that it is neither here nor there to us in Westminster" and saying that it is wrong to assert that the Bill sets up a rival Parliament or that the Bill affects the sovereignty of the Mother of Parliaments.
Lord McCLUSKEY: The whole virtue of this scheme of devolution is that it will allow a reasonable diversity within the continuing unity of the United Kingdom. Within the devolved matters the Scots may do as they like. But if one looks at the context of Clause 35 and the narrow area in which it may bite, one sees that where the Scots do something which is going to affect materially the public interest and materially affect matters which are reserved, they are doing something which is not properly contemplated within the kind of devolution that we are talking about. This Parliament, interested in the unity of the United Kingdom and in what happens in the rest of the country—England, Northern Ireland and Wales—must take an interest in that. There must be some way of stopping things from being done under this scheme of devolution which have effects outside Scotland which cannot be tolerated. I think that that is perfectly clear, and I hope it answers my noble and learned friend's question.
The Earl of ONSLOW: Will the noble Lord answer one other question from me? I can see some hungry noble Lords—
Lord McCLUSKEY: My attitude would be not a question of whether we are hungry. This is not a viva voce question and answer session. We are supposed to be making speeches on the Question, Whether the clause shall stand part of the Bill? I should have thought that if the noble Earl has a question to ask he would have asked it earlier when he was on his feet.
The Earl of ONSLOW: I do have a question to ask and I think it is very important to the point of this Bill. I should have thought that one is entitled to ask it. It may be a stupid question, it may be an inaccurate question, but I am sure that I am entitled to ask it. My question is this: As the Minister obviously thinks that he is Dr. Pangloss, is it not possible that when the Minister does use his power under Clause 35 of the Bill it is going to involve the most almighty political row? This is what is going to upset the whole of the unity of the United Kingdom, and this goes to the heart and rottenness of this whole Bill.
Lord McCLUSKEY: Well, if I have not answered that question already, cannot answer it now.
Clause 35, as amended, agreed to.
Baroness LLEWELYN-DAVIES of HASTOE: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

HOUSING (FINANCIAL PROVISIONS) (SCOTLAND) BILL
7.22 p.m.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Housing (Financial Provision) (Scotland) Bill, has consented to place Her prerogative and interest, so far as
1710
they are affected by the Bill, at the disposal of Parliament for the purpose of the Bill.
The MINSTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a. —(Lord Kirkhill.)
On Question, Bill read 3a.
Schedule 2 [Minor and consequential amendments]:
Lord KIRKHILL Lord KIRKHILL moved the following Amendment:
Page 17, line 15, at end insert (" and in paragraph (b) of this subsection any reference to a protected tenant or statutory tenant shall include a reference to such a lessee as is mentioned in paragraph (a) of this subsection".
(9A) In section 16(4), (5) and (5A) for the words "under a tenancy which would be a protected tenancy", "and his tenancy would be a protected tenancy" and "to which Part VII of the Act of 1971 would apply "wherever they occur there shall be substituted the words" where he would be a private tenant".").
The noble Lord said: My Lords, I have to address myself to an additional Amendment. Before I do so formally, may I take the opportunity of just expressing my own personal appreciation to the noble Lord, Lord Campbell of Croy, for the co-operation that he has shown to me throughout the passage of this Bill. particularly as I had to lay Amendments in a rather disconnected and unrelated manner before your Lordships and without the prior notice which I would, as a matter of courtesy, always wish to give to your Lordships' House and, in particular, to the noble Lord, Lord Campbell of Croy, who normally debates these issues with me.
I turn to an Amendment on Schedule 2. I said last week that it might be necessary to bring forward this Amendment today so as to make fully effective the increase in rateable value limits affecting the rent allowance scheme. That is indeed the case. The Amendment which was added at Report stage secured that people who would be protected or statutory tenants, but for the rateable value limit of £200 in the Rent (Scotland) Act 1971, will in future be within the scope of the rent allowance scheme so long as their house's rateable value limit does not exceed £600.

1711
As I explained last week, however, the £200 rateable value limit affects other categories of tenant mention in Section 16 of the 1972 Act, even though they are not protected tenants. The group most affected by the limit are tenants of housing associations. We need to override the limit by the new £600 limit for these categories of tenant as well. This is what the Amendment does. It makes the new limit applicable to carious categories of private tenant who were not covered by the wording of the earlier Amendment. I beg to move.
Lord CAMPBELL of CROY: First, I should like to express my gratitute for the generous remarks of the noble Lord, Lord Kirkhill, about the co-operation at the later stages of this Bill which has already passed through another place. There have been printing difficulties in the past two weeks and also I know that the Government were concerned to try to get this Bill in the right terms if they possibly could. I, in turn, acknowledge that the noble Lord made great efforts to get the first draft of Amendments to me through the post in Scotland or elsewhere in order to give me as much notice as possible. At the Report stage it emerged that there might be the need for a further Amendment at this Third Reading.
This Amendment appears to carry out what we were expecting. It means that all the private tenants who might have lost their rent allowances due to the unforeseen effects of this Bill, will now find that they are still in the scheme. I know that that is the Government's intention and this Amendment seeks to make sure of that. I can only say again what I said on the Report stage: thank Heavens for a second Chamber! If we did not have these opportunities for revision, even at this late stage, some tenants in private accommodation in Scotland would find themsleves, through nobody's fault, but just by default, without the rent allowances which they ought to have. Even though it has come at a late stage and at Third Reading, I commend this Amendment to your Lordships.
On Question, Amendment agreed to.
Lord KIRKHILL: My Lords, I beg to move that this Bill do now pass.
1712
Moved, That the Bill do now pass—(Lord Kirkhill.)
On Question, Bill passed, and returned to the Commons.

FIREARMS (VARIATION OF FEES) ORDER 1978
7.28 p.m.
Lord SWANSEA Lord SWANSEA rose to move, That an humble Address be presented to Her Majesty praying that the Firearms (Variations of Fees) Order 1978 (S.I., 1978, No. 267) be annulled. The noble Lord said: My Lords, I beg to move the first Motion standing in my name on the Order Paper. But of course what I have to say will apply equally to both Motions. This subject of increases in fees for firearms and shotgun certificates was last debated in December 1976, on an Unstarred Question initiated by myself. I was reading that debate again before I came into your Lordships' Chamber, and I shall endeavour to spare your Lordships by not repeating some of the arguments that I used on that occasion.
Only yesterday I returned from Jersey where I have been taking part in a shooting competition at international level, the championships of the European Division of the Commonwealth Shooting Federation, in which no fewer than seven countries were taking part. It is run on similar lines to the Commonwealth Gaines. Talking to some of the competitors, I found great concern expressed at these fresh proposals. Two or three people said to me: "When are they going to stop clobbering the shooter? Leave us alone and chase the people who really matter".
The Government are running true to form in their apparent policy of clobbering the shooter as well as in the manner in which these and earlier orders have been introduced. If I may take your Lordships back a few years, the history of the increases on the present principles starts from 1975, when the fees for firearms and shotgun certificates ceased to be nominal sums and were expressed officially as reflecting the current costs to the police in administering applications. At that time in 1975 the fee for a firearm certificate was raised to £7 and that for a shotgun certificate, both on initial application, to £2.
There were also corresponding increases for renewal, variation and replacement of lost certificates.
During 1975 the Home Office carried out a review of police administration costs in relation to this matter and, as a result, further increases were announced in 1976. I would just remind your Lordships of the manner in which that order was laid. It was made on 26th August in the middle of the Summer Recess; it was laid on 2nd September, still in the middle of the Summer Recess; and it was made effective on 4th October—only four days after your Lordships' House had returned and 10 days before the other place returned from the Summer Recess. So there was no real opportunity given for Parliament to debate those orders on that occasion.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): My Lords, I am sorry to interrupt. I am listening with great care to what the noble Lord is saying, but he is on an entirely false point here. The timing of the increases he is talking about in no way reduced the rights of Parliament to pray against the orders in the way in which the noble Lord has this evening.
Lord SWANSEA: My Lords, I accept what the noble Lord has said, and I should like to return to that point concerning the rights of Parliament later. As regards the present orders, that for England and Wales was made on 27th February, laid on 7th March and became effective on 1st April, with the Easter Recess covering that period—because this House did not return until after 1st April. The Home Office letter dated 21st February gave advance notice to the interested bodies—to the police, the British Shooting Sports Council, the National Farmers' Union and others—but it made it quite clear at the same time that no consultation was possible and that the order became effective from 1st April. 1 would only ask: where is the fire? Why was it essential for this order to come into force on 1st April? Any day would have done, because firearm certificates and shotgun certificates do not expire on a fixed date in the year.
I should still like to know the answer to a question I put on the last occasion. I cannot see why it is possible for an order to come into effect before the end of praying
1714
time. Parliament has a right to consider every order that is made and laid; and to bring an order into effect before praying time has expired is simply cocking a snook at Parliament and taking it for granted. I would seriously suggest that we should review Parliamentary procedure in respect of orders and make it impossible for an order to come into effect before praying time has expired, or, alternatively, to change the procedure so far as the Firearms Act is concerned and make it subject to Affirmative Resolution instead of Negative Resolution. I wrote to the noble Lord opposite on this point last year and he gave me a flat refusal on this point, without producing any really satisfactory reasons.
Lord HARRIS of GREENWICH: My Lords, I apologise for again interrupting, the noble Lord. I cannot recall the correspondence, but no doubt the point I would have made would be that this required an amendment of the law.
Lord SWANSEA: My Lords, I am aware of that, and the Government have said on more than one occasion that they intend to introduce legislation at a suitable opportunity to amend the Firearms Act further. Dare I hope that is one point they have in mind. To compare this wth the Firearms Act for Northern Ireland, orders under that Act are subject to Affirmative Resolution and, for the safeguarding of the rights of the citizen, I would suggest very strongly that the same procedure should be applied to the Firearms Acts in Great Britain. The manner in which these orders have been laid strikes one as being very similar, and I am tempted to wonder whether it is more than just coincidence. Are we to expect further orders to be laid in the Whitsun Recess, in the summer Recess or during the Christmas Recess, when we have no opportunity to consider them properly?
If the Government wish their proposals to be accepted as necessary and reasonable in relation to administrative costs, I am perfectly prepared to believe them if they can justify what they have done. But they cannot expect their figures to be taken as read. Perhaps I might read to your Lordships the Home Office letter announcing the increases. It says this:
"In view of criticism of the costing methods used in the 1975 review which formed the basis for the existing scale of fees, more detailed

1715
guidelines were provided to the Forces taking part in the 1977 Review and the proposed new fees are based on returns which reflect all properly attributable police costs. The increases are the minimum required to cover higher administration costs. This, I fear, leaves no scope for consultation and the purpose of this letter is to give the Association and the other recipients advance notice of the Home Secretary's intention to make an order introducing the scale of fees set out in column 3 of the table, with effect from 1st April 1978. I am sorry it has not been possible to give longer notice of this intention ".
What emerges from that paragraph, my Lords, is that apparently the basis on which the 1975 review of costings was made was either inaccurate or based on wrong criteria supplied by the Home Office to police forces. It looks as though someone has not got his sums right, and we would very much like to know who it is. How is it possible for administration costs to go up so much in the meantime as to justify the present increases? This letter as good as admits that the costing methods used in 1975 were either inaccurate or based on wrong premises.
How do we know they are right this time? Are we to take the Government's word for it? There were wide variations in the costs given last time; they vary considerably all over the country on a sample of police forces, including the Metropolitan Police, which was top of the league by a very long way. I should like to ask the noble Lord opposite whether he will publish the new costs of administration on which these price increases are based. Further, can he give an assurance that the Home Office, or the Government, this time have thought of everything and that no more hidden costs are going to emerge from under the carpet?
What I should like to think, my Lords, is that the Government would submit detailed costings for scrutiny and report by an independent body such as the Price Commission or the Ombudsman, because here is a very firm case where the rights of the citizen are being infringed without proper justification being given. I should like to see detailed figures of those costings. It is either a question of a desire on the part of the Government to discourage the shooter or else it is a possible case of maladministration or of the wrong questions being asked by the Home Office.
1716
I shall now pass to another point. When the holder of a firearm or shotgun certificate receives notice of renewal of his certificate, he is required to take that certificate to the local police station, where he is presumably known to the local constable, sergeant, inspector or whoever is in charge. He is required, from his own personal knowledge of the applicant, to endorse the application form and pass it to higher authority. What administrative cost does that involve? The constable does not have to go out in his car and interview the applicant.
The applicant goes to the police station with his certificate, as he is required to do. He may have to take his firearms or shotguns with him for inspection. He is perfectly prepared to do that, or to receive the police in his home so that they can verify for themselves his holding of firearms or shotguns. But too often, in cases of which I have heard through the British Shooting Sports Council, there has clearly been inefficient use of police manpower for these inquiries, and applicants have been subjected to two or three visits in their home, sometimes by more than one police officer at a time. Is that really necessary? Cannot economies be made?
Lord FERRIER: My Lords, it takes two in Scotland.
Lord SWANSEA: My Lords, I thank my noble friend. Another point is that, compared with the cost of an initial grant, the charge for renewal of a certificate is far too high and I cannot see the justification for that. If a person is judged to be a responsible citizen, and a safe person to hold a firearms or shotgun certificate for a period of three years, then it is difficult to see how his bona fides can be queried when a longer period is involved. Unless he is most seriously in breach of the law, he must be adjudged a fit person not only after three years, but after five or six years.
This is a point on which the shooting interests have been pressing the Home Office for quite a long time. I realise that a change would mean amending the Act, but if the Government have an opportunity—assuming that they still have an opportunity—to introduce an amending Bill, I hope that they will also pay attention to this point. We have been

1717
assured in the past that it is being considered. We now issue driving licences up to the age of 70, but all kinds of things can happen before that. A man can become half-blind, but he does not have to fill in a further application form or be subjected to a test, provided he stays on the right side of the law, until he is 70. Consider, my Lords, how many people are killed on the roads, and how many are killed by deliberate criminal acts or accidental shootings.
Let me take the case of dog licences. This year, believe it or not, the price of dog licences celebrates its centenary! It has remained unchanged since 1878, at 7s. 6d. or 37½. It will be incorrect for the noble Lord, Lord Harris, to say, as no doubt he will, that these increases are being applied right across the board as a matter of policy, because it is evident that they are not.
There are many thousands of law-abiding citizens, who indulge in the sport of shooting. I am not talking about the grouse shooting fraternity, which may be mentioned by some noble Lords, but about the tens of thousands, and possibly hundreds of thousands, who belong to rifle clubs, clay pigeon clubs and so on, and who shoot at inanimate targets. That is one of the fastest growing participant sports in the country, and it ill becomes the Government to try to discourage it. Apart from that, there is the question of pest destruction by farmers and pigeon clubs, rabbit clubs and so on. A farmer has a right to protect his crops and to invite his friends to come in and help him do so. The ordinary shooter, whatever weapon he uses—shotgun, rifle or pistol—and whether shooting at inanimate or live targets, has a right to enjoy the recreation of his choice, unhindered by bureaucracy and not harassed by continual increases in the cost of his sport.
As regards the Bisley meeting, the numbers are rising every year. Over the last three years, the entries have increased yearly. Each year, we have had a record entry from this country and from overseas. The standing of Great Britain in international competitions, especially within the Commonwealth, is at present very high indeed and I am sure that the Government would not wish it to be anything else. I hope that they will
1718
think over what I have said, and consider whether they have not gone far enough this time. I shall look forward with interest, and perhaps a little scepticism, to what the noble Lord opposite has to say. I have no doubt that he will say very much the same as he has said in the past. 1 think that I have the noble Lord's agreement already, but it disappoints me greatly, because I had hoped that we might have just a little crumb of encouragement held out to us this evening.
The shooters of this country have no wish to be a whipping boy for the misdeeds of others. It is for the Government and the courts to chase up the offender, rather than the law-abiding citizen. It is for the courts, especially, to make the fullest use of the penalties which they have at their disposal, which are, generally, woefully under-used. I think it is time that the Government were called to account for these increases and to provide proper details of the costings. My Lords, I beg to move.
Moved, That an Humble Address be presented to Her Majesty praying that the Firearms (Variations of Fees) Order 1978 (S.I., 1978, No. 267) be annulled.—(Lord Swansea.)
7.47 p.m.
Lord LYELL: My Lords, I am sure that the whole House will be grateful to my noble friend Lord Swansea for his very detailed and well argued explanation of his Motion this evening, and indeed for his persistence in raising this subject once again. For my part, I have to declare a minor interest: first, as the holder of both a firearms certificate and a shotgun certificate; and, secondly, as a member of one of the organisations which has expressed strong objections to these proposed fees. But I am a mere paying supporter and nothing more than that. I have no doubt that the noble Lord, Lord Harris, whom I normally associate with very competent answers on matters which interest me, such as crowd hooliganism and disorders at football games, will give us most, if not all, the answers to our questions, particularly those which have been raised by my noble friend Lord Swansea tonight.
As we have heard from my noble friend there are feelings among law-abiding

1719
citizens who possess the relevant certificates, that they are being asked to bear unreasonable costs in respect of keeping their shotguns, which are used for normal and harmless country pursuits, such as shooting rabbits, pigeons and other vermin and clearing farms in the countryside. I think that there are similar feelings of grievance among rifle clubs, as well as among other groups.
The police work involved in checking the suitability of a person to have, or indeed to continue to have, a firearm or shotgun certificate, not to mention the administration, with the legal points and the extraordinary items which can be added to the cost of firearms control, has been a little exaggerated in some of the details that we were given in answers after the last debate.
At the end of his remarks or at a later date I wonder whether the noble Lord, Lord Harris of Greenwich, could give us an indication of the numbers of firearm and shotgun certificates which are at present held in England and Wales and in Scotland. I believe that these are the relevant administrative divisions. May I also ask the noble Lord whether there is evidence of a falling off in the numbers of holders of these relevant certificates, since this is one of the fears expressed by those who are concerned about paying these increased fees.
In the course of a debate which was held in your Lordships' House in December 1976, the noble Lord, Lord Harris of Greenwich, mentioned during his remarks Section 5 of the Public Expenditure and Receipts Act 1968. He mentioned that the orders must obtain, and then the noble Lord quoted from the Act:
"… a net return corresponding more nearly with the cost of the matters for which [those fees] are payable".
I wonder whether the noble Lord will be able to let the House have the latest available details which would indicate that the fees are being used according to the strict parameters of Section 5 of the 1968 Act.
The noble Lord, Lord Harris of Greenwich, might be able to help us with a comment that he made later on during his remarks in that same debate in December 1976. He said:
"We do not expect revenue to balance expenditure until 1977-78 "—
1720
I think that is the year which has just ended—
"and that will happen only if there has been no increase in costs during the intervening period ".— [Official Report, 2/12/76; col. 506.]
I think that there the noble Lord is referring to revenue balancing expenditure.
I appreciate, and I am sure that the House and my noble friends also will appreciate, that these remarks were made by the noble Lord 17 months ago. It was the last major opportunity that we had to debate these fees. However, there are widespread fears in all parts of the House, and I believe in the country at large, that costs have not risen so much as the proposed increase in fees. The noble Lord, Lord Harris of Greenwich, will allay some of those fears if he can give us the very fullest explanation possible of the factors which affect fee increases of this size. Is such a large amount really required to carry out a check upon the continuing suitability of somebody to hold a certificate, particularly in view of the fairly minor administration which is involved, as was pointed out by my noble friend Lord Swansea, when it conies to renewing a shotgun certificate, since the holder of a certificate will go to the police station and carry out most of the leg work and transport work involved? We should be grateful for any further details that can be supplied by the noble Lord.
In the course of his remarks during the debate in December 1976 my noble friend Lord Swansea mentioned the administrative costs of firearm and shotgun control. Certainly the profit motive seemed to me to be obvious, but I wonder whether the noble Lord can disabuse me regarding this attitude towards what I call profit. He might be able to tell us what extra costs or factors have been involved in checking certificates since 1976 and how they would affect the figures which are included in the orders today.
The House will be aware that the sharp increase in fees has given widespread cause for concern in country areas, certainly among those who legitimately use shotguns or firearms, be they rifle clubs or pistol owners. This concern will be heightened unless the noble Lord, Lord Harris of Greenwich, can give my noble friend Lord Swansea and, indeed, the House the answers we are seeking tonight.
7.55 p.m.
Lord FERRIER: My Lords, I did not expect to find that there would be a number of points which I could make in addition to those which have already been made by my noble friends. However, in referring to the few points which I wish to make I cannot resist a chuckle at the fact that my noble friend Lord Swansea drew attention to the point that one of the dates involved in laying these orders was 1st April. As a devoted follower of field sports, I am, with many others, as my noble friend Lord Lyell has pointed out, thoroughly unhappy about these orders. They can only serve to make it more expensive and therefore more difficult to enjoy shooting, whether in field sports or in competitive skeet such as my noble friend Lord Swansea referred to in his speech.
Apart from the question of expense about which we hope to hear further from the noble Lord the Minister, the administration of these swingeing impositions can only take up more of the time of the police—time which, in my opinion, could better be spent, as they, the police, would prefer, in countering crime. All of the evidence in Colin Greenwood's article in the Autumn number of the Wagbi Quarterly, the wildfowlers' magazine, goes to show that there is little or no link between weapons used for sport and the upsurge in the number of armed robberies.
It looks to me as though the declared intention of the Socialist movement to outlaw field sports is the real motive behind these orders. We have just had a reminder of that in the recent decision of the Home Policy Committee of the Labour Party, under the chairmanship of Mr. Wedgwood Benn. They leaked to the media on "The News at Ten" that they propose to ask the National Executive of the Labour Party to include a pledge to abolish all field sports in their next Election Manifesto. This is just another example of attempts by the Government to divide the nation by harrying the law-abiding. Would not Parliament's time be better spent upon harrying the criminal?
Something that was said by my noble friend Lord Swansea makes me remind your Lordships that a good many years ago—I believe it was in 1973—it was contended that there should be a standing
1722
independent advisory committee on firearm control. Nothing has happened about that suggestion. Perhaps my noble friend Lord Cottesloe will recall the problem which was raised at that time.
My noble friend Lord Swansea made a strong appeal for some sort of independent body which would be able to deal with these matters in a sensible way. 1 should like to repeat what I have said before in your Lordships' House: that any person possessing a sawn-off shotgun is, ipso facto, a criminal and should be treated as such. Nobody in his senses will saw the barrel off a good sporting shot gun. Quite apart from that, what does possession of such a weapon mean? It means that it is to be used for shooting human beings. We should be going after people like that and leave these already onerous fees as they are. If I may turn to clay pigeon shooting, the editor of a magazine published by the Sports Council which I receive regularly, whom I have chided for the absence of coverage of shooting in a magazine that is devoted to sport and recreation, gives me to understand that he will at least have an article on the subject of skeet shooting in the next issue.
I wonder whether the Sports Council have been consulted by the Home Office and asked for their views on these orders. My noble friend Lord Swansea mentioned the grouse shooting community. I imagine that he meant the game shooting community in general, for in addition to the people who shoot without shooting game my noble friend mentioned people involved in agriculture, as did my noble friend Lord Lyell. However, many more ancillary jobs are connected with the question of shooting, which makes an important contribution to the employment of skilled personnel, from the keeper and the ghillie down to the gunmaker and the gun fitter. I hope that my noble friend will not withdraw his Motion so that at least those of us who support him can cry, "Content". I for one shall not seek to divide the House, but if the House chooses to divide, I shall go into the Lobby with my noble friend Lord Swansea.
8.1 p.m.
Lord COTTESLOE: My Lords, in rising to support the Motion moved by the noble Lord, Lord Swansea, I suppose I must declare an interest—an interest as having all my life practised and enjoyed

1723
target shooting with a rifle at Bisley and elsewhere, and in pursuit of that interest being concerned actively as a vice-president (or in some other office) of the National Rifle Association, and the National Sporting Rifle Association; being concerned with the pastime of probably more than a quarter of a million marksmen who are members of those associations and their affiliated clubs. An interest also from a lifelong enjoyment of the sport of shooting, of shooting both game and vermin with a shotgun; and I gather that there are certainly more than three quarters of a million shotguns in use innocently and legally by members of the public in this country. The numbers arc very considerable.
Also I have to declare a particular interest as the holder of a firearms dealer's licence—not indeed, as I may assure your Lordships, that I do in fact deal in firearms. I do not so deal, but having inherited a large number of rifles used in experiments concerned with the development of the military rifle since 1860, most of them firearms now obsolete or obsolescent, it was represented to me by the police that it would save both them and me a lot of time and trouble if I were to keep a standing register that they could check from time to time, rather than that I should make out for them a new list every time I wished to renew an ordinary firearms certificate.
Having declared my interest—a wholly innocent one—let me turn to the orders themselves. As has been said, there are two points to be considered: first, there is the way in which they have been brought forward and promulgated without any adequate notification to the quite small and well known numbers of national bodies and associations concerned—the National Rifle Association, the National Small Bore Rifle Association, the Wild-fowlers Association of Great Britain and Ireland, the Clay Pigeon Shooting Association. There are one or two others, but very few. It is quite astounding, for example, and I find it quite shocking, that the first intimation that the Secretary of the National Rifle Association received of these orders was when he read a short paragraph in the Financial Times, stating that the orders had been made. Quite apart from the Shooting Sports Council, who were notified at a very late date so that there was no time, before the orders were laid,
1724
for circulation even to the members of that Council. let alone to their associated bodies, surely the National Associations representing shooting should be given early notice of such orders affecting their interests and the interests of their members, as a matter of course and as a matter of common courtesy.
When we discussed in this House the last orders made some 16 months ago, we were told that the policy was simply that the fees should broadly cover the costs of administering the licences and that this was a general policy covering all licensing of the kind "right across the board". I think that was the phrase used. It is certainly not a universal policy because, as my noble friend Lord Swansea has pointed out, the licence fee for dogs, derisory as it is, has not been altered for 100 years. But leaving that aside and accepting that in total fees should be broadly commensurate with costs, there is a widespread and undoubted belief, rightly or wrongly, among those who pay these fees for firearm and shotgun licences, that the fees are deliberately subjected to swingeing increases in order to reduce the numbers of lawfully held firearms and that the police believe, against all the evidence, that that would reduce the numbers illegally held and used for criminal purposes. Rightly or wrongly, this is widely believed, and if it is not the case, then it is important that there should be opportunity for discussion to reassure those whose sport is subjected to this burden.
There was, for instance, a reasonable suggestion embodied in a Bill brought forward by Mr. Marcus Kimball in another place that licences should cover an extended period. I believe that was never adequately discussed. There may well be other suggestions that could be put forward that might lead to a reduction in the police costs. For instance, there are questions that should be discussed of arrangements for certified members of the National Associations and their affiliated clubs being able to obtain licences more easily than the public at large, which might save a great deal of police time and trouble and expense. The variations in costs between the metropolitan area and the rural districts appear on the face of them to he excessively wide, even taking into account the higher incidence of crime in the metropolis.

1725
Quite certainly, the fee for replacing a firearms certificate that has been mislaid or destroyed, of £13—simply for replacing a piece of paper—all the particulars of which the police already have, is manifestly excessive, as is the fee for a straightforward renewal of the certificate held by a respectable citizen.
I hope that the noble Lord, Lord Harris of Greenwich, may be able to assure us that there will be an opportunity for suggestions to be put forward and discussed, and that the Home Office will put their cards on the table and dispel the widespread concern by showing just how these figures are arrived at, something they have never yet attempted to do. Otherwise they are fostering the belief among shooting men and women, not only that the fees which they have to pay are unnecessarily high but also that they are being discriminated against quite improperly and unfairly.
8.8 p.m.
Lord MURRAY of GRAVESEND: My Lords, I think that I should first declare a non-interest. The last time I held a firearm was during my National Service and I never wanted to hold one again, but it seems to me that this debate has developed into an argument that this Government want to harry and chase the shooting man out of existence. I do not think that is the case at all, and I am surprised that in a debate of this sort, which seems to me to be on quite a reasonable level, even Mr. Wedgwood Benn can get an honourable mention as being somebody who wants to abolish shooting men. I am not here as a member of the National Executive Committee of the Labour Party and I do not have to defend the decisions of the Home Policy Committee, but, just to clarify that point, I think that the field sports that the Labour Party Home Policy Committee have been concerned about are fox hunting and hare coursing, and not the question of clay pigeon shooting or live pigeon shooting or rabbit shooting or that sort of field sport.
It seems to me that the argument has developed, not into a question of how much the increase should be—and we have had talk of "swingeing increases" —but whether people should be licensed at all. I did not quite understand the
1726
reasoning of the noble Lord, Lord Swansea, whether it was against the increase in licence fees or whether it was against licensing at all or any form of control. It seems to me that with the increases that we all face in an inflationary period from which we hope we are now recovering, they are not unreasonable. After all, if we are talking about licensing, that is a form of control.
My noble friend Lord Harris is no doubt quite able to answer for himself, but I think that if these increases were not justified he would not be presenting them before the House in this order, purely on the basis that he gets more fuss pro rata on increases in fees for shotguns and firearms than probably with any other order that he lays before this House. The costs we are talking about are now £13 for a firearm and £5 for a shotgun. So, for a shotgun, you are talking about round about one halfpenny per day over a period of three years. For a firearm, you are talking about something like 1.18 pence. That is all you are talking about, and it seems to me that the administrative costs are perfectly justified.
Lord INGLEWOOD: My Lords, if the noble Lord will allow me, he has referred to the cost of renewal of a firearm certificate and a shotgun certificate, one of which is 2½ times greater than the other. Is he suggesting that it costs 2½ times as much police time and clerks' time in a police-station to renew a firearm certificate as it does to renew a shotgun certificate?
Lord MURRAY of GRAVESEND: No, my Lords, but surely the noble Lord will agree that these increases are pro rata on the original costs that we are talking about. It does seem to me that these increases are not swingeing increases but are quite reasonable. 1 am sure that my noble friend will be able to justify them, and of course it is up to noble Lords who have prayed against this order to take their own decision.
Lord FERRIER: My Lords, the noble Lord said that somebody had suggested that there should not be licensing. I have heard nobody say that. Certainly there should be licensing and certainly there should be firearms and shotgun certificates.
Lord MURRAY of GRAVESEND: My Lords, I think the noble Lord would agree that the general drift in the argument in favour of those possessing firearms did at one stage seem to be that there should be no licensing and that the only thing one should be doing is chasing the offenders. What we are saying is that there should be licensing and control, and these charges are completely in line with that.
Viscount MASSEREENE and FERFARD: My Lords, for the years 1976 to 1978 the average increase has been 162 per cent. for firearm certificates and shotgun certifictaes. If the noble Lord talks as though there has been hardly any increase I think he is off the line.
Lord BURTON: My Lords, many noble Lords will be grateful to my noble friend Lord Swansea for introducing this prayer. I am at a complete loss to understand how police administration costs can be so high as to require these charges. I am wondering whether there is some inefficiency or whether the figures are accurate. My own firearms certificate has a considerable number of weapons upon it. How a cost of £13 can be justified to renew it passes my comprehension. If, on the other hand, I want some increase in the amount of ammunition allowed on the certificate, or a new weapon, it is even more difficult to understand how the cost can amount to £13.
Can it be that there is big expenditure on investigating doubtful cases and that this is being charged against the more reasonable applicants? I suggest that possibly inadequate guidelines are given to chief constables and that as a result there is considerable variation as to granting of certificates; some chiefs give the certificates quite easily and with others it is quite difficult to get one. Of course, chief constables delegate many of their powers in this respect, and the individual applying may well have to be subjected to a report given by a constable who is very ignorant of firearm matters. There will then be time-consuming argument and delay resulting in extra expense.
Again, there have been cases where there have been criminal proceedings and weapons have been confiscated by the court but the individuals have been allowed to keep their certificates. Courts should be given permission to confiscate certifi
1728
cates. Indeed, it has been known for convicted persons, following the confiscation of their weapons, to go behind the scenes after the hearing and buy back the weapons just removed from them, not always at full market price. Indeed, the disposal of confiscated weapons is a matter requiring far more attention than increases in these charges.
Then there is the case of visiting sportsmen from overseas. The noble Lord who has just spoken averaged out the cost, but such people may come only for a week and they have to pay £16 to allow them to use a rifle in this country for a week.
Lord MURRAY of GRAVESEND: My Lords, I should have thought that anybody who comes here for shooting could well afford that. If they are coming here for a week's shooting, that does not seem to me an inordinate charge.
Lord BURTON: My Lords, they may be coming to fire at a range; it may not be sporting shooting, which the noble Lord seems to have his mind entirely directed against. Why should there be these penalties on people coming over? They do not have them in other countries. If you go to Sweden, which, after all, is perhaps even more Left than some of the noble Lords opposite—
Lord COTTESLOE: Impossible, my Lords.
Lord BURTON:—the customs there accept your weapon as you come in, and ask, "When are you taking it out?". You have it for a week or whatever it is, and I imagine there is some charge, but it is quite a simple procedure; whereas in this country you have to apply weeks or months before, and increased expenditure is run up. I really do consider that there is something which very badly needs looking at here.
Lord TRYON: My Lords, I am sorry I did not put my name down to speak, but I should like to try to correct an impression that the noble Lord on my left may have given when he said that the increases had not been all that swingeing. I have just done a little sum, the example being someone—and I declare an interest here because it happens to be me—who

1729
has both a shotgun certificate and a firearms certificate which were granted in June 1975. The cost of that was £3.50. In June this year, I shall have to go to my local police station and pay £18. That is a 514 per cent. increase in three years. I think noble Lords will agree that that is a fairly swingeing increase, even if there is now a new basis for working out these costs more accurately. Here, I should like to support the noble Lord, Lord Swansea, and many of the other noble Lords who have spoken in calling for greater detail from the Government as to just how these costs are arrived at, because I find them very hard to believe.
8.18 p.m.
Lord HARRIS of GREENWICH: My Lords, I fully understand the concern of the shooting community over the increases introduced by these orders, which conic only 18 months after the substantial increases which came into effect in October 1976. I think it is perfectly natural that we should be asked why we have had to increase these fees. The explanation is a very straightforward one, and it is a dilemma which I am bound to say not one of those who have spoken has really faced up to. It has indeed been the policy of successive Governments, including the Government which noble Lords opposite supported between 1970 and 1974, that fees such as those for certificates and registration under the Firearms Act should be set at the level required to cover costs of administration. That is a bipartisan policy; there has been no doubt about it. It was a policy of the Conservative Government and it is a policy of the Labour Government.
Lord BURTON: My Lords—
Lord HARRIS of GREENWICH: No, with great respect, I will gladly give way in a few moments. I have listened with close attention to the speeches made and I think it not unreasonable that I should now be able to answer them. I will gladly give way at a later stage, as I always do.
Where controls are required in the public interest, the cost can, of course, be recoverable in only one of two ways. It has either got to be done by the Revenue from specific fees or by higher rates of taxes. That is the only choice—one way
1730
or the other. Before 1968 it certainly was common—I concede this immediately—for there only to be a nominal fee for licences and certificates relating to activities controlled in the public interest. The fee for the issue of a firearm certificate, just to take one example, was only five shillings. The main burden of the cost of administration fell, as it did in many other fields of activity, on the ratepayer and taxpayer.
That was the situation before 1968. But in 1968 Parliament decided that, where people were engaged in an activity which needed to be regulated in the public interest, they should be required to pay the full economic cost of issuing or renewing their licences or certificates. The decision was given expression—the noble Lord, Lord Lyell referred to this—in Section 5 of the Public Expenditure and Receipts Act 1968, and it has since remained not only unchanged but largely unchallenged, except, if I may say so, whenever one increases firearm fees.
This policy does not, of course, apply only to firearms; nor does it apply only to activities with which the Home Secretary is concerned. It applies right across the board, from lotteries and amusements to major petroleum installations. The policy applies to matters as diverse as licences for the removal of human remains and certificates of competence for ships' radio operators. There is no question of discriminating against the shooting community or, to quote the noble Lord, Lord Swansea, of clobbering the shooter.
Whenever the firearms fees are raised, we hear the cry that the shooter is being victimised, that the increased fees are part of a monstrous Home Office plot, or indeed a plot by Mr. Wedgwood Benn, I understand, this evening, to deprive shooters of their weapons. That is pretty far-fetched stuff. I do hope that some noble Lords who have spoken will speak in the future on this matter with rather more restrained language than they have employed this evening.
I come to the dog-licence question. That is a fair point. It was raised by the noble Lord, Lord Swansea, and by the noble Lord, Lord Cottesloe, who has just spoken. The position of dog licences is indeed a rather anomalous arrangement, as I concede immediately. It has indeed

1731
operated for, I think, about 100 years at its present level. Of course, dog licences are a totally different matter from what we are discussing at the moment. I shall give the reason why. They were conceived as an entirely revenue-raising method for Governments. That is why dog licences were instituted. In fact, to answer the point, the cost of administering the scheme is still covered by the amount of money that is received. That happens to be a position which I checked only today. It remains true that, notwithstanding the fact that these fees have not been increased for such a very substantial period of time, the cost of administering the dog licences scheme is still covered by the revenue which is raised by it—which, if I may say so, is a total answer to the point made. I do not believe that a single noble Lord can give another example, or any example indeed—none has been given, except this particular point—whereby there are any exceptions to the policy that I have indicated, which has been the approach of both Conservative and Labour Governments.
The fees for firearm and shotgun certificates are set at the level required to recover the costs of administering the certification procedures—no more. In this respect the shooter is treated no differently from any other licence-holder whose activities are regulated in the public interest. Let me explain briefly how the present fees came to be fixed. They are based on a review of the costs, during the 12 months ending 31st March 1977, of dealing with successful applications for firearm and shotgun certificates and for registration as a firearms dealer. In calculating the costs, police forces were specifically asked to exclude the costs of dealing with unsuccessful applications, attending court in connection with appeals and other enforcement aspects of the firearms controls. These were all excluded from these calculations. The estimates therefore reflect only the costs to the police of granting and renewing certificates and registrations.
Because of the criticisms of the costing methods used in the 1975 review, which were repeated here today—and this particular calculation formed the basis of the fees which were introduced in October 1976—we went to considerable trouble to prepare far more detailed guidelines for
1732
the forces taking part in the 1977 exercise. Before the survey commenced, Home Office officials discussed with the police the best method of ensuring that all participating forces used broadly comparable costing methods. I am satisfied that, as a result, the returns submitted in response to the 1977 survey are as accurate an assessment as we can get of the properly attributable police costs. These, I should add, do not cover only police time. They include an appropriate proportion of the costs of office accommodation, common services, items such as stationery, printing and postage and, where appropriate, computer time.
A number of forces, as the noble Lords will be aware, have computerised their firearms records. In my view, it would be quite wrong not to take into account an appropriate share of the overheads involved. This principle is applied in assessing the administrative costs of other kinds of licences and certificates. In other words, similar methods are used in calculating any other charges of a kind to which I have referred in my speech this evening.
The review that I have just described showed that the fees fixed in 1976 fell a long way short of recovering the costs of administering the firearms certification and registration procedures. Allowing for an inflation rate of 10 per cent. in 1977-78, the expected revenue from fees was some £850,000 less than the estimated costs of administration. Clearly this could not be allowed to continue. There was no alternative in this situation to increasing the firearms fees, unless they were to be subsidised by taxpayers at large, and the Government have no intention whatever of allowing this.
A number of noble Lords asked how these figures were calculated. The answer is that they were calculated by the police. I was not absolutely clear, in the light of some of the speeches made, whether it was being suggested seriously that the police were in some way rigging these figures. There was, I regret to say, an implication in one or two speeches that that was so. I very much regret it, if that is the suggestion, because I do not believe it is a charge which should be made against chief officers of police, who are responsible for calculating these fees. I must say that was a very clear indication.
Several noble Lords: My Lords—
Lord HARRIS of GREENWICH: Let me finish this point. I shall then give way. There was a clear implication in at least two speeches that were made earlier by noble Lords.
Lord LYELL: I wonder whether the noble Lord could possibly be a little more particular with his fire. That is a particularly apposite comment this evening. Certainly, in the course of my remarks, and of at least two other remarks, at no time did we suggest that there was any rigging of figures. I asked the noble Lord a plethora of questions. At no time did anybody say that there was rigging. Nor do I think it reasonable to suggest that the tone of the debate was that the police were involved.
Lord HARRIS of GREENWICH: I am much obliged to the noble Lord. If he will study Hansard tomorrow, I shall be surprised, when he reads some of the other speeches, if he takes that same view. I made no such suggestion. The noble Lord made that suggestion. If he reads Hansard, he will find that implication clearly in at least two speeches.
Lord BURTON: I think the noble Lord may possibly be referring to some of my remarks. But I did ask the noble Lord how he could possibly justify the cost of fl 3 when adding a weapon to my certificate. That is just not feasible. It would not cost £13.
Lord HARRIS of GREENWICH: The noble Lord is a very helpful ally. He has justified precisely the point that I was endeavouring to make. The point is that these figures were calculated by the police on the basis which, as a result of criticisms made in the past, has been most carefully refined. I do not believe that there can be any truth whatever in the suggestion that the police force deliberately rigged this matter in the way that has been suggested this evening.
A number of questions were raised. The noble Lord, Lord Lyell, raised a question about the situation of the Metropolitan Police Force area. It was
1734
raised by a number of those who spoke. I take the point completely that there is a problem here, in that costs in the Metropolitan Police Force area are undoubtedly a great deal higher than they are in any other part of the country. That is certainly true, but of course the reason for that is a simple one, that the Commissioner of Police takes the view that it is necessary to devote far more resources to firearms control in London than is the situation in any other part of the country.
The reason for that is a very simple one and it is this. Of the 1,068 robberies in 1976 which involved the use of firearms no fewer than 767 were committed in London. That is why the Commissioner of the Metropolitan Police takes the view that it is necessary to devote far more time and resources to this task. After all, he has the responsibility for ensuring law and order in this city.
Viscount MASSEREENE and FERRARD: My Lords, were these 760-odd crimes in London which involved firearms committed by people who had firearm certificates? If they were not, that does not help the Minister's argument. The people who have firearm certificates are law abiding citizens.
Lord HARRIS of GREENWICH: We have gone over this ground on a large number of previous occasions and I regret to say it goes rather outside the confines of this debate. The Commissioner takes the view that it is necessary to have a particularly rigorous system for ensuring proper control of firearms in the Metropolitan Police district. I think an overwhelming majority of people in this country would agree that that is a proper and responsible attitude for the Commissioner of Police to take, and I would find it very surprising if many actively disagreed with it.
We have gone over this ground tonight in some detail and I have made the Government's position absolutely clear, that firearms and shotgun licence holders are being treated in the same way as anybody else. There is no way in which it would be possible to take a different decision in terms of the financial basis for the licensing arrangements for shotgun

1735
and firearm licence holders. How could such an exception be justified? Why should shooters alone be excluded from this policy? Why should they and nobody else be subsidised by taxpayers? With great respect, not one noble Lord who has spoken in this debate has answered or even thought to answer that question. I am perfectly well aware of the fact that many people who pay for licences in this way do not like it and their motives and attitude are perfectly understandable when, as a consequence of inflation, it is necessary to increase the cost.
I would add this point. A number of points have been made by one or two noble Lords about police practices and they have asked whether the police do not on some occasions go into this matter more thoroughly than they should—for example, two policemen arriving when one might do the job. I have pointed out already to representatives of shooting organisations that there is a way in which complaints of this sort can be ventilated. If in fact allegations of this sort are going to be made there is a well devised system for complaints against the police. They are constantly made, but unfortunately those making them do not often come forward and give detailed evidence. If they wish to do so I suggest that they make it to the local chief officer of police, who I am sure will be glad to carry out an investigation as to whether there is any justice in the complaint.
Lord TORPHICHEN: My Lords, are not those complaints a reflection on the complexity of the rules for procuring licences, which in fact contribute to the cost which noble Lords consider unjustified? If these rules are not amended or looked at more carefully it will mean that this is going to be only a rich man's sport. Noble Lords here, I am sure, can afford it, but the noble Lord opposite probably knows many people who would not be able to afford this.
Lord HARRIS of GREENWICH: My Lords, I can understand the point which the noble Lord is making but 1 think it goes rather wider than the terms of the order we are discussing today. Obviously I have strayed beyond it myself because I have been dealing with a number
1736
of points raised by noble Lords. The issue which the noble Lord has raised now would require amendment to the legislation itself and that is not an issue which is before us today. Because of the widespread interest in this House, I have gone over the ground in some detail, but I repeat: shooters are not being treated any differently from any other section of the community. I must tell the House bluntly that in the event of this order being negatived tonight the police who carry out the day-to-day responsibility for organising firearms control would face a situation tomorrow morning where they would be plunged into a degree of administrative chaos of the greatest complexity and seriousness. I would put it to the House that at a time when the police are carrying out responsibilities on behalf of the entire community, on an occasion such as this it would not be right to put them in that situation.
Lord MOYNE: My Lords, having listened to the whole of the debate, and certainly not having heard any accusations against the police, may I ask whether it is not a contradiction about the taxpayer paying for the licences? This came out from what the noble Lord said about the higher cost incurred by the police in London where they had to be so very careful. Is it not the legitimate applicant who is having to pay for the applicants who have to be turned down? Is there not there a discrimination against the legitimate applicant?
Lord HARRIS of GREENWICH: My Lords, I do not think so. I think the situation as I have described it is more favourable to the shooter than would be the position if the present situation were changed. I repeat that I think I have put the argument as fairly as I can. I am well aware of the anxieties which have been expressed today. I have met representatives of the shooting interests on a number of occasions. I find those meetings agreeable. I think noble Lords may find it rather surprising in the light of some of the speeches that have been made, but when we have met together Mr. Wegdwood Benn's name, so far as I can recall, has not been raised and some of these darker fears have not been expressed. Nevertheless, if representatives of the shooting interests

1737
would like to meet me in the future to discuss these wider questions, I of course would be very glad to meet them.
Lord LYELL: My Lords, before the noble Lord sits down, he mentioned that there were problems in the Metropolitan area and I think he justified his case in detail, but would he also accept that the vast proportion of shotgun and firearms certificates are held outside the Metropolitan area? Indeed, we had one very short intervention from my noble friend Lord Tryon. I think the noble Lord, Lord Harris, and indeed the House would agree that a quintupling of charges in three years would require a little more detailed comment. Possibly it could not be done tonight, but if the noble Lord, Lord Harris, could give us some indication as to where we, or any interested organisation, could find these details it might help.
Lord HARRIS of GREENWICH: My Lords, if I may respond to this particular point for the third and last time since I concluded my speech a few minutes ago, I will gladly see what additional information I can give the noble Lord, Lord Lyell, and write to him. He will appreciate that the point which I was dealing with dealt with the most difficult question of all from my point of view, and that is the police force which has the highest costs so far as its certificate registration procedures are concerned. All other police forces have significantly lower costs. I think that deals with the point, but I will gladly write to the noble Lord and give him any further information I can.
Lord SWANSEA: My Lords, first I wish to thank all noble Lords on both sides of the House who have taken part in this short, but very interesting debate. I should like to assure the noble Lord, Lord Harris of Greenwich, at once that it was never in my mind to accuse any police force of deliberately cooking the books and rigging the figures. I hope that when he reads the report of this debate tomorrow he will not read into my speech anything of that nature. Indeed, if he finds anything suggesting that, I shall gladly buy him a drink!
The noble Lord said that although the fees for licences of various sorts were being increased right across the board, the shooters were the only people who had
1738
so far objected. Are we not entitled to object? I am tempted to quote from The Merchant of Venice, but I shall not take the time of the House to do so now. I do not see why we should accept exhorbitant fees of this sort lying down, unless the Government can justify the figures. If they are prepared to publish the figures and give details of how they have arrived at the costings, then we may be prepared to accept them as fair and reasonable, but not until then.
The noble Lord, Lord Murray of Gravesend, made a short intervention much on the lines which I had expected in view of his previous interventions on this subject. He declared what he described as a non-interest and it was easy to see why. He is not interested in shooting of any shape or kind. The noble Lord was more interested in putting his views on blood sports to which he is entitled. I respect his views on that subject, but they are not really relevant to the present debate. I should like to invite him to look tomorrow not only at the report of this debate but also at the reports of other debates in which I have taken part over the years, some before he came to this House. If he can find anything that I have said at any time which indicates that I should like to see the total abolition of all forms of firearms control, I shall buy him a drink too!
I recognise that there must he controls of some sort, but they must be sensible and workable and must not bear too hardly on the law-abiding citizen. Stop clobbering the shooter and clobber the villain instead. If the Government do that they will have my wholehearted support.
I shall not detain your Lordships any longer. I should like to express my thanks to all noble Lords who have taken part in the debate. I should like to console the noble Lord, Lord Harris, by saying one kind thing about the police before I sit down. I received a stock letter from my local police force in Wales along with the notification that my firearms certificate was due for renewal. That letter bore the name of the chief constable and it was couched in very fair and reasonable terms--terms that were much better than any other letter that I have seen from any chief constable. The letter inquired courteously whether

1739
the recipient would not consider reviewing his need for the firearms that he held and invited him—if he had any firearm that he no longer needed--to dispose of it. He was further informed of his rights as regards the manner in which he could dispose of it. That letter should serve as a model to other chief constables throughout the country and I wish that there were many more like that chief constable around.
I was very tempted when I put down this Motion to ask for your Lordships' opinion on these orders. However, I think that I had better not do so, although that is much against my inclinations. I should like to thank the noble Lord, Lord Harris, for his reply, which I shall study carefully. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.

SCOTLAND BILL
8.45 p.m.
House again in Committee.
Clause 36 [Power to prevent or require action]:
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 138:
Page 17, line 23, leave out from ("indirectly") to end of line 24 and insert (" unless any action capable of being so taken is taken; ").
The noble Lord said: This is really a drafting Amendment because I suggest that, on this occasion, the drafting leaves something to be desired. My Amendment relates to subsection (1)(b). At present, the subsection reads as follows:
"If it appears to the Secretary of State—…
(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"—
that is, in subsection (1)(a)—
"or, as the case may be, that the action capable of being taken shall be taken ".
Have we all understood that? Who is to take the action? There is no indication whatsoever. As this is drawn, it says:
1740
"if it appears to the Secretary of State— …
(b) that any reserved matter would or might be affected directly or indirectly by any action capable of being so taken;"—
that is taken by a Scottish Secretary— I take it, or by or on behalf of a Scottish Secretary. 1 had to read this subsection again and again before I could make any sense of it at all. I do not think that it is right. As I understand it, this is the counterpart, from the point of view of the Scottish Executive, to the clause which we dealt with just before we had a brief recess and which dealt with the legislation side.
Perhaps I may indicate to your Lordships what I think the clause means. I think it means that, if the Secretary of State thinks that the Scottish Secretary is about to do something which is within his competence, but which would or might affect a reserved matter directly or indirectly, the Secretary of State may direct him not to do it. Then, not only must the Scottish Secretary comply, hut, if one reads on through the clause, no other Scottish Secretary must do that thing either, unless the Secretary of State changes his mind and gives the Scottish Secretary another direction varying or revoking the first direction. Then it goes on and says that if the Secretary of State thinks that there is something that a Scottish Secretary could do to help him in his responsibilities for reserved matters, he can direct the Scottish Secretary to do it. That, as I understand it, is what this very complicated clause means.
My Amendment is perfectly simple and greatly clarifies the issue. By inserting my Amendment, the provision would simply read:
"If it appears to the Secretary of State— …
(b)that any reserved matter would or might be affected directly or indirectly unless any action capable of being so taken "—
that is, taken by a Scottish Secretary—
"is taken".
I should have thought that that clarified the situation and avoided some difficulties that could arise in identifying what is meant by "any action". The phrase, "any action" goes very wide indeed. One does not cure that by referring to "the action" at the end. This is a piece of drafting that lawyers may understand, but I do not think that the ordinary person would. However, with my Amendment they certainly would. I beg to move.
Lord McCLUSKEY: I think that the noble Lord is absolutely right in his understanding of the clause; but by tabling this Amendment and by what he has said lie has raised a doubt in my mind whether the clause is drafted to achieve precisely what it is that he described and what we had in mind. For that reason, I should like to reconsider its drafting, as he invited me to. I am reluctant to accept the Amendment precisely as it stands, as I hope he will understand, because this is a matter upon which I ought to consult the draftsman. However, at the moment my inclination is that he is right and that we ought to meet him. But, with his permission, I should like to speak to the draftsman about this. On that basis, perhaps he might withdraw the Amendment.
Lord WILSON of LANGSIDE: Before the Amendment is withdrawn it would be helpful if some explanation could be given of the purposes of this clause, which has somewhat puzzled me, although the noble and learned Lord may prefer to leave this to a later stage. What are the problems which the Government foresee as being necessary to meet, and to the meeting of which this clause is directed? It might be helpful to the Committee if we could be given some explanation.
Lord McCLUSKEY: If the Committee would like an explanation, I think that the proper context for it would be in relation to the clause stand part debate.
Lord WILSON of LANGSIDE: Yes, indeed.
Lord DRUMALBYN: I am grateful to the noble and learned Lord for what he has said. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.53 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 139:
Page 17, line 38, after (" may ") insert (" subject to subsection (7) of this section ").
The noble Viscount said: This Amendment goes with Amendment No. 142, and it might not he inconvenient if we discussed with it also Amendments No. 146 and 147 on Clause 37 because the points, which I intend to be points of principle,
1742
and, indeed of exploration, were all dealt with together. If I may, I shall try to set the framework because in so doing the very first thing that the noble and learned Lord, Lord McCluskey, will be able to do is to tell me that I have totally misunderstood the whole thing and he will put me right.
As I understand it, when one deals with primary legislation there are two stages of possible intervention by the Secretary of State. The first is that we have pre-Assent scrutiny under Clause 19 for consideration, first of all, whether the Bill is within the powers and, secondly, whether there is any incompatibility with Government-orientated EEC obligations or other international obligations. That is the first thing that happens with primary legislation. Then, if the Bill has not been tripped up on those grounds, under Clause 35 there is still the opportunity, after it has passed and before it is submitted for the assent of Her Majesty in Council, for it to be vetoed on the other grounds that we were discussing, which are really policy grounds under Clause 35. That is why, as I understand it, there is no reference in Clause 35 to international obligations, whether they are European or whether they relate to any other country of the world; that has already been dealt with under Clause 19.
When it comes to executive action, which is what Clause 36 is about, and very much in the same way when it comes to subordinate instruments under Clause 37, we do not have that dichotomy of control in the Bill, but rather the two processes are rolled together. Instead of there being a two-stage inquiry, first, as to powers and, second, as to policy, we have the whole thing wrapped up together all in the same clause.
The purpose of Amendment No. 139, and so on, is really to probe again the situation that was raised earlier on Clause 19 by one of my earlier Amendments. I appreciate that in the terminology of Amendment No. 142, which I adopted because that was what was in the Bill, it does not draw particular attention to directly applicable European legislation. That is really what I am about. 1 think I conceded on Clause 19 that where it was a matter for the Government to decide as a matter of executive action whether or not they would legislate

1743
so as to bring the United Kingdom into line with a requirement that had come from the Commission or Europe in one form or another, then it was right that it should be a political decision whether or not to object to Scottish legislation, Scottish executive action, Scottish subordinate instruments and so on, if they ran foul of the requirement.
However, I think that by this time the noble and learned Lord has been apprised of my intention, which is not so much to probe that, which I can understand, but to see how it works in the case of directly applicable European legislation. What will happen? What will the Secretary of State in London do if he sees either the Scottish Secretary about to take an action which he knows is incompatible—or, indeed, which he perhaps thinks is incompatible—with an obligation which is directly applicable to each and every citizen of Scotland in so far as it is relevant to them? Alternatively, what will he do if there are incompatibilities in the terms of a Statutory Instrument, which I should think the Secretary of State was bound to have seen in draft—on account of the consultation process, minute by minute, that we heard about before the dinner hour?
At present he simply vetoes the thing in the same way as he vetoes the obligation, the action or the instrument that is incompatible with the Government-orientated obligation. But that does not seem to me to be in the least suitable for an executiveaction or a subordinate instrument which will infringe a directly applicable European Community right. The Bill simply does not provide for this, and I think it ought to. I hesitate to go back over anything that I said on Clause 19, but if we have a case where the Secretary of State knows very well that there is a conflict of this sort, I would prefer that the matter should be nipped in the bud before it ever comes into effect, and, therefore, before it ever impinges upon the life of any individual, rather than as it is left at the moment, where the individual has to take expensive action in the courts afterwards to put it right. I would suggest that that is not cheap!
I know that quite junior courts can refer these matters to the European Court of Justice. Nevertheless, the requirement
1744
in the European Communities Act is really only that a court of final jurisdiction should so refer them, and it could go all the way up the hierarchy of the courts—if it was a criminal matter obviously it would go no further than the Court of Session, but if it was a civil matter it could go as far as this House sitting judicially—before it could be sent to Europe. At least, that is probably what would happen. That is a very expensive process to impose upon the individual, as one or other of the parties in the end would pay the costs and, of course, there are the costs of going to Europe as well.
I put down these Amendments, imperfectly drafted though I have no doubt I will be told they are, really in order to explore this because I think that if the matter was referred—and that is my suggestion in these Amendments—by the Secretary of State rather in the same way that I believe lie could refer under Clause 19 (if it means what the noble and learned Lord said it meant) both directly applicable conflicts and Government-orientated conflicts, we ought to have powers (and of course they are discretionary powers) for the Secretary of State to take the initiative and, in exactly the same way, refer the thing to the Judicial Committee.
I expect we shall be told that this would be slow and cumbersome and that it does not fit in very well with the 28 days period. I have here tried to fit in the concept of Parliament having 28 days in which to decide with the decision of the Judicial Committee, and I have made the 28 days start running only when the Judicial Committee has made its decision. But if we are going to be thoughtful about this, I believe we ought to have a compatible arrangement, a comprehensive arrangement, and one which fits all the activities of the Scottish Assembly, and the Scottish Ministers, executives and Secretaries, so that, in the case of Clauses 36 and 37 activities, we do not have the burden falling upon the individual citizen whereas in the case of primary legislation it would fall upon the Secretary of State and the public purse. It is a tentative matter, but I do not believe that it has been discussed anywhere else. and I think it could be important. I very much look forward to hearing what the noble and learned Lord has to say about it. I beg to move.
9.2 p.m.
Lord McCLUSKEY: When we last discussed the related matter in the earlier discussion to which the noble Viscount referred, it became plain that we were thinking primarily in terms of obligations which fell upon the Member State, and the noble Viscount was thinking primarily in terms of the directly applicable obligations. When this failure, as it were, to meet the lack of a consensus in idem on the point was disclosed in the course of these discussions, I undertook to look at the matter again. I confess that 1 have not yet had time to come to any definite conclusion. Of course the noble Viscount is quite right in thinking that if one carries something into the earlier provisions of the Bill, one has to carry it through here as well. Therefore, I think we are largely in sympathy with his aim in this matter. I have undertaken to look at the matter. cannot go any further at the moment.
There may well be a distinction between primary legislation on the one hand and the kind of thing we are talking about in Clause 36, and for that matter in Clause 37, on the other. What is not absolutely clear—and this again was a point I mentioned in relation to Article 177 of the Treaty when the noble and learned Lord, Lord Diplock, intervened at one stage—is that there is a justiciable issue here. But that again is a matter which I have to look at in the light of the comments last time and in the light of what has been said tonight.
I think that the noble Viscount is right in saying that the matter can be resolved by the ordinary courts. if in fact the Community legislates so as to create an obligation upon the citizen being an obligation which is directly applicable whether it is in a Directive or a Regulation, and the citizen finds that the Scottish Executive has taken action which runs counter to his Community directly applicable obligation, then he can take this quandary to the courts and the courts will resolve it presumably in favour of the Community obligation.
The noble Viscount is right in saying that that might be expensive, and it may be that the better course is that it should be picked up at an earlier stage if it can be identified and picked up. So I think it would make consistent sense only if I were to say that while looking at the whole
1746
matter of Community obligations as raised on the earlier occasion I were to look at this matter as well. If it can be accepted on that basis, I would express my thanks to the noble Viscount for raising it again and drawing attention to wider applications than we discussed on the earlier occasion. I will take it away on that basis.
Lord DRUMALBYN: May I say a word on this as I have had to deal with quite a number of EEC regulations and Directives. 1 wonder whether in most cases it will be rather easier than this. Most of us will have in mind certain regulations about equipment to be fixed on a freight vehicle, for example. Supposing the Scottish Secretary was proposing to legislate that there should be quite a different arrangement which would preclude that kind of instrument, then surely it would be quite simple for the Secretary of State to direct him not to proceed with that action. Conversely, it might be necessary to require him to proceed with the action that the Community was requiring in its Directive or its regulation. I should have thought that this was the common way in which this kind of matter would arise. When I raised it, this is what I thought the clause was intended to convey.
Lord McCLUSKEY: Perhaps 1 should have drawn the Committee's attention to Clause 60(3) which appears on page 29 of the Bill:
"If it appears to a Minister of the Crown—
(a)that the implementation of a Community obligation"
et cetera,
"requires the exercise of any power to make a subordinate instrument; and
(b)that the power could be exercised by a Scottish Secretary; but
(c)that it is desirable that it should be exercised by a Minister of the Crown, he may exercise the power…".
That may have some bearing on the matter, although perhaps only a marginal bearing in relation to what is directly applicable.
Viscount COLVILLE of CULROSS: I should think that it has a bearing, but a fairly indirect one when one is making certain that one has the terms of Clauses 36 and 37 right. Certainly it ought to be knitted into the pattern and made consistent with anything we may do. My

1747
noble friend has given one example about the tachographs. If, when we come back to discuss these matters we can think of examples of areas of legislation or action or whatever that everybody agrees could be a forum for the sort of problems we are considering, it would be easier to direct our minds to the whole issue, rather than trying to do so in a complete vacuum.
A possible example occurred to me. wondered whether under Schedule 101 admit 1 may be wrong about this—when we have Group 7 control of pollution, we might get the position of a Scottish factory owner with effluent being subjected to controls by Scottish legislation which may be stricter than that imposed by Europe on all his competitors in the rest of Europe. That sort of area of devolved power might give rise to an occasion of this sort. If that were a good example, we could easily discuss on that basis primary and subordinate legislation as well as Executive action covering the whole field. I give that example only for the noble and learned Lord's consideration so that when we return to this matter we have something concrete to consider, and I do not ask him to comment on it now.
Lord McCLUSKEY: The example which the noble Viscount just gave might not be one, because it is difficult to see the incompatibility there. The tachograph instanced by the noble Lord, Lord Drumalbyn, may not be one either, because my impression at the moment is that it would not he covered by "devolved matters". Accordingly, what we lack, if I am right on both those points, is an instance where it really matters. Perhaps the noble Viscount and his noble friends will think of an instance which is real and, if they do, no doubt they will let me know, and we shall he doing precisely the same.
Viscount COLVILLE of CULROSS: The one thing 1 would have expected is that, if this legislation is to last for any length of time, an example will occur. It is no use our supposing that there is nothing in the devolved matters which will never give rise to a conflict of this sort, and we must make certain that whatever machinery we set up is equipped to deal with this sort of problem. I tend to agree
1748
with the noble and learned Lord about the tachograph, and if he says I am wrong in my pollution example, then we must talk about it, but for the moment I am entirely happy with the answer he gave. I look forward to his further consideration of the matter and I will do my best to give it the same treatment. 1 beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.12 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 140:
Page 17, line 42, leave out from ("Scotland") to end of line 43 and insert—
("or
(b) concerns any other part of the United Kingdom (whether or not it also concerns Scotland); but in either case").
The noble Viscount said: I move this Amendment only to make sure that I heard the noble and learned Lord, Lord McCluskey, alright when he said that when looking at Amendment No. 253 he would also be taking into account the question of the definition of "legislative competence" as it affects the powers of the Scottish Secretaries under Clause 36 as well as the power to make subordinate Instruments under Clause 37. I do not think there is any doubt about Clause 37; the subordinate Instruments would be bound to be made under competent Assembly Acts and if they were to have incidental provisions which strayed across the Border that must be all right within the terms of Schedule 2(8).
What I am not certain about is whether there is any similar implication in relation to the powers of a Scottish Secretary to act executively. The direct connection between the competence as set out in Schedule 2 and executive powers—which could come under the provision we were discussing about prerogative and other executive powers being devolved, which is Clause 20(3)—does not look to me as though identical terms of reference are provided so far as powers are concerned. This would be particularly strange when one has a definition of reserved matters which is common both to the Executive action under Clause 36, and to the subordinate Instruments under Clause 37. On the face of them they ought to mean the same. but for the reasons I have suggested I am by no means sure that they are.

1749
This is a very complicated point, and I am certainly not asking the noble and learned Lord to make any definitive answer about it tonight. I add this only because I believe it is another dimension to his consideration that he has, I think, promised in relation to both these clauses and paragraph 8 of Schedule 2. I hope that I make myself plain to the noble and learned Lord, and I am certainly not trying to be obstructive in any way. I think merely that there is an unexplored area here, certainly one in which I have not succeeded in getting to the end. I beg to move.
Lord McCLUSKEY: First, I affirm that in my view the noble Viscount is being entirely constructive. There may well be another dimension here, though I am not sure that there is, and this perhaps is the least strong of the cases. But I think that it would be logical to say that as we have started off down this particular road—and it is right that we should do so and as we have done so in consequence of the matter being discussed here in any detail for the first time, we should go to the end of the road. In a sense Clause 36 is the extreme case at the far end, so let us look at that as well. I apologise to the Committee if I cannot appear more definite. Sometimes when I am definite I am criticised for being definite but negative, but here I am being indefinite but mildly positive. I hope that that can be accepted.
Viscount COLVILLE of CULROSS: I am certainly not going to criticise the noble and learned Lord in any way at all. He is being totally constructive. If the matter is off the end of the road and has fallen over the cliff, we need to do something about the definition of reserved matters in Clause 36, because it is no use having a common definition with Clause 37. A different one would be needed. I do not think I very much mind for the moment whether or not in the end this situation allows a Scottish Secretary to take executive actions which cross the Border. If I knew whether or not the Government intended that he should take such actions, I would then apply my mind to that, but at the moment I cannot detect which way it is. It may be that he ought to be tied down to act in Scotland alone, and I think we would be prepared to accept that, but the matter
1750
must be made clear, and the noble and learned Lord has now said that he will do that. I am grateful to him, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.16 p.m.
Viscount COLVILLE of CULROSS moved Amendment No. 141:
Page 18, line 8, at end insert (" and shall be judicittlly noticed.").
The noble Viscount said: Here is a truly arcane matter, but it is not my fault that I have had to raise it. This is due to something which is already in the Bill. Actions by the Executive tend to have an effect upon the individual. They are also matters which, in the terms of the Bill, it appears to me the Government may he expecting law officers to take before the courts. I am not sure about that. One sees in subsection (5) that
"A direction under this section shall be binding on every Scottish Secretary ".
Thus I would tend to suppose that the renegade Scottish Secretary who refused to be bound could, at the very least, be taken by the Lord Advocate perhaps to the Court of Session for whatever is the correct Scottish legal remedy to make him do what he was told. I believe that that would be an implication which it is not unreasonable to draw. It also seems to me not improbable that if a Scottish Secretary, having been directed under this clause, and having purported to ignore that direction, has imposed a licence fee, or whatever it was, upon the unfortunate citizen, despite the direction not to do so, then the individual in question would, I suppose, refuse to pay, and would defend his refusal when taken to court by the Scottish Secretary, or otherwise brought to book in some form.
My difficulty about this is that I do not know how one gets the direction before the courts. It may be that this problem does not arise in Scotland, though I doubt that. It must be remembered that in the Bill the direction under this clause is said to be binding on every Scottish Secretary, but nobody says anything about. judicial notice. But in Clause 17 a much more important matter is discussed; namely, the legal status of a Scottish Assembly Act itself. Of the two matters, if it was a question of getting

1751
them before the courts, I should have thought that if one did not say anything at all, it would be very much easier to get a Scottish Assembly Act before the courts so that the courts would recognise it as being a valid Act of the Scottish Assembly. But we find in the Bill that it is the Scottish Assembly Act that is judicially noticed, so that the courts can take account of it, hut not the direction on the Secretary.
That casts doubt in my mind upon the admissibility of the direction of the Secretary of State on the Scottish Secretary when it comes to litigation. If there is any doubt about admissibility, how on earth does the individual prove it? The Lord Advocate could probably do so because I expect that he can produce the original of the direction, but I should be very much surprised if anybody can tell me that the individual citizen could produce the original direction; and with that juxtaposition I would strongly suspect that we ought to say something about it in terms in the Bill. I beg to move.
Lord McCLUSKEY: The noble Viscount has referred to Clause 17(5). I think we discussed that earlier, when I had the assistance of the noble and learned Lord, Lord Hailsham, in my answer. That was intended to put Assembly Acts on the same footing as Acts of Parliament so far as recognition by the courts is concerned, so that Assembly Acts do not need to be proved to be Acts before they are recognised by the courts. The idea behind Amendment No. 141, as explained by the noble Viscount, appears to be to ensure that a direction will prove itself in legal proceedings. Our view there is that this is not a precaution which it is necessary or appropriate to take. I can very briefly say, of Acts themselves, that judicial notice is taken of every Act passed after 1850. That is because of Section 9 of the Interpretation Act 1889. Indeed, judicial notice may be taken of other matters as well: for example, up to a point, anyway, some international law. Outside the purely legal field, judicial notice is taken of ministerial seals under paragraph 5 of Schedule I to the Ministers of the Crown Act 1975.
But to prove a ministerial letter—and that is what the Amendment is about,
1752
because that is the form this direction would take—is quite different. The enactments constituting particular Departments invariably provide that documents signed or executed by a Secretary to the Department or by a person authorised by the Minister to act in that behalf shall be received in evidence and be deemed to be made or issued without further proof unless the contrary is shown. A direction letter can be protected to this extent and should not, despite its importance, be accorded any other status. The provision on which the Scottish Office rely is Section 1 of the Reorganisation of Offices (Scotland) Act 1939, which is Chapter 20 of 2 and 3 George VI.
Perhaps I might say just a word on the general matter which was raised by the noble Viscount. The Government are not intending to make directions of this kind free from judicial review; but, in answer to the specific instance which was taken by the noble Viscount, he envisaged proceedings in the Court of Session by the Secretary of State against the Scottish Secretary. Our view of that is that they could not take legal proceedings against one another of the kind he has in mind because they are both agents of the Crown. Accordingly, one would not envisage proceedings of that kind. In any event, leaving aside the fact that they are both agents of the Crown, given that the Scottish Secretary is, in this context, an agent of the Crown, there could be no coercive remedy against him because of the Crown Proceedings Act. So, at the most, if someone other than the Secretary of State were able to bring proceedings it would presumably be what we in Scotland call an action of declarator. It would not in fact compel him to do anything: it would merely be the court making a declaration about what the legal position is, and then, of course, it is hardly conceivable that the Secretary, the court having declared his position, would not act in accordance with it. So we do not think that this particular Amendment is necessary, but it may be that the noble Viscount would like to consider my answer and at the moment not press this Amendment.
Lord HAILSHAM of SAINT MARYLEBONE: I think the noble and learned Lord is probably right about this, but I think it is something about which it is

1753
desirable to be absolutely certain. Prima facie, I can conceive of litigation between a subject and a Scottish Secretary, brought by a Scottish Secretary in order to enforce actions by himself under what purport to be the provisions of this Act. In such circumstances, the action of the Scottish Secretary might be impugned by the subject in the course of that litigation, whether it was one way or the other.
In that case, the subject ought to be in a position to prove the direction of the Secretary of State which was rendering the Scottish Secretary's authority ineffective. He ought to be told in the legal textbooks exactly what he has to do to prove it. I suspect that the noble and learned Lord will have the answer because it must be familiar ground in the law of Scotland. What the law of Scotland says about the Secretary of State's directions given under a Statute I do not know, because the law of evidence in Scotland is not identical with the law of evidence in England. But it is a point which can arise and it is a point which ought to be rendered certain.
Lord McCLUSKEY: I believe that the noble and learned Lord will find the answer to the instance that he has given, which I am convinced is a real one, where the subject wants to found upon the Secretary of State's direction, in Section 1 of the 1939 Act which I quoted.
Viscount COLVILLE of CULROSS: That has produced the sort of answer which I had hoped for. All that we wanted was to make sure that the subject could get at the direction in a form in which it would be acceptable to the court. My noble and learned friend has elaborated on this and the noble and learned Lord opposite has given an answer. I shall look up this Act, with which I am not totally familiar, and shall consider it. It would be very surprising indeed if the noble and learned Lord was not right. In the circumstances, I am happy to beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.26p.m.
Earl FERRERS Moved Amendment No. 331:
Page 18, line 13, leave out from ("Parliament") ("and") in line 14.
The noble Earl said The noble Earl said: This Amendment and the one which follows are both consequential upon Amendment No. 330 which we approved earlier this evening. I beg to move.
On Question, Amendment agreed to.
Earl FERRERS moved Amendment No. 332:
Page 18, line 15, leave out ("the House of Commons") and insert ("each House of Parliament").
On Question, Amendment agreed to. [Amendment No. 142 not moved.]
On Question, Whether Clause 36, as amended, shall stand part of the Bill?
Lord CAMPBELL of CROY: I shall be brief. The point I want to register is similar to the point made on Clause 35. We had a debate on Clause 35, the noble and learned Lord, Lord McCluskey, has already replied and what he said then will probably apply to what I am going to say now. This clause gives the Westminster Government powers to over-ride actions by the new Scottish Executive and, again, I would draw attention to the wording which is vague and very wide. It reads,
"If it appears to the Secretary of State for Scotland that it is desirable in the public interest".
So it is not only a matter of opinion on the part of the Secretary of State but it is also a matter of judgment as to what may or may not be in the public interest.
As I understand the Government's view, they foresee that this clause will seldom be used apart, perhaps, from where Community or international obligations are concerned under subsection (2), because it may be that, there action may be necessary because of inadvertence on occasions. But the wording again raises the risk of conflict and collision as on Clause 35. The provisions are such that they will no doubt be kept continually, under consultation, as the noble and learned Lord has said with regard to Clause 35; but I think that occasions will arise where there will he conflict and this wording does not really meet the case.
Lord HAILSHAM of SAINT MARYLEBONE: I think there was a paint which the noble and learned Lord, Lord Wilson of Langside, was desiring to raise.
Lord WILSON of LANGSIDE: I am grateful. I hoped we might have some explanation in general terms about the purpose of this clause. I was wondering whether, for example, it might have any bearing on the various committees about which we heard last night on such matters as Outspan oranges, foreign policy and defence.
I was wondering, for example, if any action taken by these committees might be open to action in terms of this clause. I would be inclined to doubt it, but as several noble Lords wish to give consideration to the question of the operation of these mysterious committees about which we have heard, it will be helpful to know whether it might in any circumstances be conceivable that the powers under this clause could be used to control these bodies, if anything they did were done on behalf of a Scottish Secretary, and if anything they did would or might affect a reserved matter. I should certainly have thought that if committees of this extraordinary description were really envisaged—and the noble Lord, Lord Wigg, referred to them when he was speaking earlier—it is difficult to conceive that they would not do things which might affect a reserved matter.
Lord McCLUSKEY: If I may seek to answer the noble and learned Lord, Lord Wilson of Langside, it is true that statutory bodies are born naked. They have no powers other than those that Statute confers upon them. The committees envisaged under the earlier clauses of this Bill are not even statutory bodies; they are simply committees. They have no powers at all. The word used in connection with them is "functions". It is used in the general sense. They have no powers, no duties, at all. Therefore they are not the bodies that we have in mind when we come to Clause 36. In Clause 36 we are really talking about the exercise by a Scottish Secretary of powers of the kind that he has under the Bill, being powers which are referred to in Clause 59(3). I hope that that answers the point made by the noble and learned Lord.
The noble Lord, Lord Campbell of Croy, said that the clause was very vague and wide. We have been over this particular course before, and he acknowledged that. I simply have to say that,
1756
as the noble and learned Lord, Lord Hailsham of Saint Marylebone, pointed out, the matter is basically subjective here. It is a matter of political judgment for the Secretary of State and that is true of this clause as it was of others. I agreed with him that the Government's view here is that this kind of power will seldom be used. Indeed, as I said earlier in another instance, the number of concrete examples one can identify when one goes on a trawl through the possibilities are few. I must confess that I have deep sympathy with the point made by the noble Lord, Lord Mackie of Benshie, that here is machinery which we all hope will rust through disuse. But, none the less, the Government feel that it is proper to have it.
Lord CAMPBELL of CROY: I hope that the noble and learned Lord is right, but I suspect that when we reach Schedule 10 we shall have found quite a lot of fish in the trawl.
Clause 36, as amended, agreed to.
Clause 37 [Power to revoke subordinate instruments.]:
[Amendments Nos. 143 to 146 not moved.]
9.35 p.m.
Earl FERRERS moved Amendments Nos. 333 to 335:
Page 19, line 1, leave out from ("Parliament") to ("or") in line 4.
line 12, leave out from ("Parliament") to ("and") in line 13.
line 14, leave out ("the House of Commons") and insert ("each House of Parliament").
The noble Earl said The noble Earl said: I beg to move Amendment No. 333 which is consequantial on Amendment No. 330 which we passed earlier. With your Lordships' permission, I would also beg leave to move Amendments Nos. 333, 334 and 335 en bloc.
On Question, Amendments agreed to.
[Amendment No. 147 not moved.]
Viscount COLVILLE of CULROSS moved Amendment No. 148:
Page 19, line 21, leave out subsection (7).
The noble Viscount said: Those people who are able to decipher mysteries tell

1757
me that subsection (7) of Clause 37 is an attempt to do away with the procedure of this House, as laid down in Standing Orders Nos. 216 and 216A of the Private Bills Standing Orders of the House in relation to hybrid Instruments. If there was a subject which was likely to arouse the passions of the Committee at this time of the evening, that seems to me to be one of the first contenders I can think of. Nevertheless, I am afraid it is something which I consider to be of some importance and which needs to be discussed by the Committee. I may say that it is a peculiarly House of Lords matter, since it is only in this House and not in another place that any remedy is given to the individual subject to come to Parliament to deal with the way in which a hybrid Statutory Instrument affects his own affairs in a particular way. Therefore it is particularly apt that this Committee of your Lordships' House should discuss it.
A hybrid Instrument—and I hope I have got this right—is the same sort of animal as a hybrid Bill. I think I may justifiably be allowed to say that by this time I have discovered a certain amount about hybrid Bills. Hybrid Instruments are probably smaller animals, but they raise the same issues, in that, whereas they purport to have a general effect, their terms are such that they can, and indeed may, be construed to bear particularly and discriminatorily upon an individual.
In those circumstances, your Lordships have devised over the years a complicated system whereby the individual may come to complain, and indeed, having got through a positive croquet lawn of hoops, if he succeeds and hits the post at the end he comes in front of a Select Committee, which will then consider his Petition. The "croquet lawn" is set out in Standing Order No. 216, and I may say that the various stages of the consideration of a Petition on a hybrid Instrument are very far from four. The noble and learned Lord will find this matter on page 92, and page 93 has more of it, together with pages 94 and 95. If the noble and learned Lord has not looked at it before, he has a big treat coming.
Lord McCLUSKEY: The noble Viscount should be less trusting. If he consults his noble friend Lord Campbell
1758
of Croy, he will find that he and I have been over this ground many times in connection with the recent Local Government (Scotland) Bill.
Viscount COLVILLE of CULROSS: That had not escaped my notice. I have been looking up the winged words in the Official Report—but not, I think, in quite the same context as we have here. All I was saying was, when I had stopped teasing the noble and learned Lord, that he will recognise at once that the whole process of screening a Petition is a very careful one, and it certainly makes sure that there does not come forward for a decision by this House any Petition which lacks merit. Even when it does come before this House, if it gets through to that stage, there is still the opportunity, as I believe happened in the HoffinanRoche case, that, although it has merit and has passed through all these procedures, nevertheless the House itself decides on the individual case not to send it to a Select Committee.
So it is certainly no formal matter, and the occasions when hybrid Instruments get on a Petition to a Select Committee are comparatively rare. I think it is necessary to say that, so I would not suggest that, in tampering with the Bill as it now stands, I am likely to unleash a deluge of petitions and Select Committees upon your Lordships.
There have been a number of occasions, and not only the Local Government Act-I am not sure whether it is still current—that have given rise to arguments about this point. It goes back over a period of time and, indeed, I see that it was the Party to which I belong which first started this, on, I think, the Local Government Act 1972 for England. Although it was my noble friend Lord Sandford who moved that Amendment, I moved the next one. I did not understand it when I read it in Hansard, but I suppose that I understood it at the time, and it has been used by both Parties since.
In fact, there are now two ways in which it is handled. First, there can be a straight exclusion of hybrid Instrument procedure and this, I think, has happened three times. 1 have tried to find out what happened. On one occasion it was debated. On the second occasion, which was the Water Act 1973, it was for some reason

1759
not debated at all, and so the criteria which had been adduced by the Government for making this alteration in our Standing Orders were never tested or explained. In the third case, it occurred on a Money Bill which for obvious reasons was not discussed at all in this House. So I have only some fairly general principles upon which to go.
Before I seek to ask what the principles are and how they apply in this case, I must ask for the noble and learned Lord's help to see whether I can identify what kind of animal it is that this hybrid Instrument might be, because it is not by any means easy to do. First, if one starts at the beginning of Clause 37 we have an instrument made by a Scottish Secretary. Of course, it is not that Instrument which is liable to be the hybrid instrument, because that is not an instrument which, in itself, would ever come before this Parliament at all. For all I know, the Assembly's standing orders may have some equivalent of our Private Bill Standing Order 216, in which case you might be able to do something about it before the Assembly or one of its committees.
But that is not the case that we have to deal with in subsection (7) of this clause. What we have is a United Kingdom order made by the Secretary of State, which proposes that the Scottish Statutory Instrument should not be approved. If that is the kind of order that we are dealing with—I believe that it is— it is very difficult indeed to say, in the generality of the way in which this clause is drafted, what the Instrument might be about. It might be about almost anything. There is no telling in what form or in what context the hybridity may arise. Therefore, one cannot say, as one can in the case of the individual instances where this has been done before, that, for instance, it would be a matter of urgency, or it would be a matter which was so incredibly boring that nobody could possibly wish to take the point—such as who were to be the members of the Water Authority, or something of that kind—or that any of the other criteria that I have been able to find could possibly be said at this stage to apply.
One simply does not know. All that one does know is that here is envisaged a subordinate instrument order, made by the Secretary of State, which is, in itself,
1760
bound to be, for the purposes of this hypothesis, hybrid in some form or another. In what way it is hybrid, it is impossible to forecast, and, in whatever way it may turn out to be hybrid, in no circumstances is anybody to petition against it. That is a fairly tall order.
When we have ruled this out altogether on previous occasions, there has been, as I have said, only one occasion which I have been able to find when it was explained. It related to the orders dividing non-metropolitan counties into districts under the Local Government Act 1972. So far as I could detect the criteria in the fairly short discussion, there were two. First, it was most likely that the orders for all of the metropolitan counties would be made at the same time. If they were all comprised there would be no room for hybridity because only one of them would be treated in a special way. Nevertheless, it was possible that there might have to be a residual order that dealt with just one metropolitan district, in which case I can quite easily see that one might say that it was being dealt with in a discriminatory fashion as opposed to the way in which all of the other metropolitan districts had been dealt with. So I can see that there could be a case of hybridity there, but it was being suggested that it was very unlikely to occur because of the fact that it was probably going to be done all in one order. This is one criterion that is not likely to occur. I hope that that is right.
The second criterion that I can see in that particular debate is that before any order of this kind had been made the Boundary Commission would have had a look at it in any event and, after the necessary investigations, would have reported on how it should be done; so the matter would already have been discussed. Knowing the way in which the Boundary Commission works, it would have been open to the various contender authorities to put their points, probably in public at the kind of hearing or meeting which one has under Boundary Commission type of reviews where everybody can have a say.
That is another criterion whereby people might perhaps say, "No, don't come back to the House of Lords. You really ought to have exhausted your remedies in the inquiry before the

1761
Boundary Commission". In fact, that is a point which is made in Standing Order No. 216. One of the reasons why a petitioner may not get through all of the hoops is because the Hybrid Instruments Committee inquires whether the petitioner may have failed to avail himself of opportunities to have matters complained of properly inquired into. That would seem to me to be the same point.
I pause there in midstream to make just one other point. The other thing that has happened is that there has been invented, starting off with my noble friend Lord Campbell of Croy on the Petroleum and Submarine Pipelines Bill, a kind of truncated procedure whereby, in cases of urgency, there can be a speeded up petition and a speeded up procedure; and if it does not get through in 28 days that is too bad, and the whole process falls. 1 mention that point only to make perfectly certain that the noble and learned Lord realises that I know about it, and also to remind the Committee of what I am sure they themselves already know very well. That is not being suggested here. We are having a complete exclusion, not the truncated version.
With that preamble, I want to ask the noble and learned Lord this question: First, in so far as I have attempted to isolate from discussions on past occasions what are the criteria that have led this House to abandon the hybrid Instrument procedure, have I got those right? If there are more criteria in other debates when we have decided to do this, could the noble and learned Lord tell me what they are? And when we have identified the full range of criteria, will he tell us how they are to be applied to the situation under subsection (7) particularly as, whatever the criteria may be, it is totally impossible to tell whether any Statutory Instrument could or could not fall within them, since there is no way whatever of knowing what the Statutory Instrument will consist of?
I truly believe that there is a conundrum here. I think that the power to petition against a Hybrid Instrument is a matter of substantial value to the subject. I have read with interest what my noble and learned friend Lord Dilhorne has said in the past on this. His emphasis has been on the protection of the individual which only your Lordships afford to the indivi
1762
dual at this stage of a Statutory Instrument's process. It is something that I truly believe is an important safeguard which we should not abandon and, in particular, I am quite certain that we should not abandon it unless there is a really good reason for doing so. I am bound to say that unless the noble and learned Lord can provide me with a good deal of information which my own researches and imagination have wholly failed to provide, I cannot see what justification there can be in this Bill. I beg to move.
Lord McCLUSKEY: I hope the Committee will find that my explanation is at least as clear as that of the noble Viscount, Lord Colville of Culross. If one looks at subsection (7) one sees, as the noble Viscount has made clear, that the Bill is envisaging that in certain circumstances there may be a departure from provisions contained in Standing Orders, being provisions which arc designed to protect private right. He is quite right in saying that such a departure is important and that a step of this kind should not be taken lightly, because the effect is to take away certain provisional petitioning rights of individuals in cases where, were they not taken away by Statute, they would be exercisable. It does not follow, of course, that there will be many such cases. Once again this is an instance where our view is that override orders which take advantage of this provision would be rare, and override orders made under Clause 37 and potentially falling within the scope of the Standing Order will be rarer still. However rare they may be, as the noble Viscount has outlined, the principle is one of some importance.
I believe the noble Viscount found difficulty in relation to the matter with which we may be concerned. But I think the correct answer is that if we look at Clause 37(1) we find that there are two instruments there: one is referred to in line 19, the instrument made by a Scottish Secretary, and the other one, under the title "order" is the one referred to in line 25. So the Secretary of State makes an order and its effect is to revoke the Scottish Secretary's Instrument. I believe that the order of the Secretary of State takes its character from the Instrument which it revokes, because if the Scottish Secretary makes an Instrument

1763
which is, in the ordinary meaning of the word, "hybrid"—if I dare use the word "ordinary" as the epithet, and if one gives a normal meaning to the word "hybrid"—and the Instrument made by the Secretary of State is hybrid in that sense, then necessarily the order which revokes it is itself of a hybrid character.
Viscount COLVILLE of CULROSS: I do not think that necessarily follows, because if the Scottish Instrument is hybrid it may be that the hybridity is cured by the Secretary of State's order revoking it. Therefore it does not follow that the Secretary of State's order is in its turn hybrid.
Lord McCLUSKEY: I accept that it may he, but it may not be.
Viscount COLVILLE of CULROSS: That is so.
Lord McCLUSKEY: So I am wrong to say that it necessarily takes its character; but it can be infected with hybridity, and that would be a serious condition.
Viscount COLVILLE of CULROSS: Serious indeed.
Lord McCLUSKEY: So I think my central proposition is still sound, that if in fact the order made by the Secretary of State is an order to which subsection (7) would apply, it would be so by virtue of its having been contaminated by the hybridity in the Instrument made by the Scottish Secretary. I hope that gives some content to the point about which the noble Viscount asked.
Viscount COLVILLE of CULROSS: I think the other possibility, if I may speculate wildly, is that the Scottish Instrument was made in order to cure a situation which would otherwise be hybrid and the United Kingdom Order by revoking it recreates the hybridity.
Lord McCLUSKEY: If the noble Viscount speculates wildly I shall ruminate fiercely, but I do not think I have anything to add to what I said in relation to how the order acquires its character which brings it within the ambit of subsection (7). Let us suppose, then, that
1764
we are within the ambit of subsection (7) in the way I have indicated; then, given the other contents of Clause 37, of public interest and matters of that kind, and the effect upon a reserved matter, I think the noble Viscount would acknowledge that, once you have got into the ambit of Clause 37, you have the potentiality of a question arising which is both urgent and important and has the public interest which I mention—in fact, it has to have that before it comes into Clause 37 at all. So the public interest is then involved and the issue cannot properly be described as a purely local issue affecting only Scotland or a part of Scotland.
Again, I indicate that I do not believe override proceedings under Clause 37 for revocation of subordinate Instruments will he set in motion lightly hut, when they are, because of the impact upon reserved matters and because of the public interest which I mentioned, they should, in our view be treated as a matter within the control of Parliament. The matter should be subject to a vote on the Floor of the House because of the public interest, and that should be the end of it. Of course, both the House and the Government will bear in mind that private interests might be involved, but this is not a matter, because of that public dimension, on which it would be appropriate to allow the usual petitioning procedure to operate.
I do not think that there is any exact parallel to this; at least I do not know of any. I was not aware of the water provision referred to in 1973 that the noble Viscount discovered in his scholarly examination of this matter. Certainly, the one which I was involved in before, which the noble Lord, Lord Campbell of Croy, and 1 looked at on several occasions in the course of the passage of the Local Government (Scotland) Bill last year, was rather different; it was a cousin to the present example, but that was a truncated procedure and I agree that it is different, although there is a relationship.
In other words, one is always saying, at the end of the day, that, given that there are perfectly good reasons why we have Standing Orders like Standing Order No. 216 for protecting private interests but that, in some instances, the public interest may require modification or

1765
indeed total derogation from the ordinary procedures, we must look at the particular circumstances. I hope that the explanation I have offered in relation to how the order may acquire its character will satisfy the noble Viscount that such circumstances may arise, and that that will satisfy him as to the desirability of subsection (7).
9.58 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: I wonder whether I may say a word about this. I am bound to admit that this discussion has been carried on at an intellectual level somewhat above my head, but there is a point which now arises out of the noble and learned Lord's reply to my noble friend and which I think is within my compass. I would like to explain exactly what it is. I was originally in considerable doubt as to whether either my noble friend's Amendment or the subsection itself were necessary, and I should like to explain first of all what my doubts were.
I, like the noble and learned Lord, had come to the conclusion, before the more refined point was put to him by my noble friend, that the only way in which an order under this clause could be hybrid was by infection; that is to say, the original Instrument created by the Scottish Secretary would be hybrid, and, therefore, the order revoking it by the Secretary of State would be infected with the original hybridity of the Instrument made by the Scottish Secretary. I wondered how that could be so. This is the reason why I had that doubt. The order made by the Secretary of State revoking the offending Instrument by the Scottish Secretary would ex hypothesi be restoring the legal status quo, because it is the offending Instrument created by the Scottish Secretary which alters the status quo, and the order made by the Secretary of State revokes it.
Therefore, the order made by the Secretary of State restores the original status quo before it was interfered with by the Instrument. Ex hypothesi, this was my doubt. Lx hypothesi the legal status quo cannot itself be hybrid. This is not a possible conception in Parliamentary law. The law, as it stands, cannot be hybrid. Only an alteration in the law can be infected by hybridity. Therefore, I thought
1766
that Clause 7 was unnecessary because it seeks to bypass a hybridity which cannot take place. My noble friend's Amendment omitting it is equally unnecessary because subsection (7) deals with a situation that cannot possibly happen.
The one point of agreement between the noble and learned Lord and my noble friend is that I am wrong about those doubts that there is a real danger of hybridity in the order of the Secretary of State revoking an Instrument by the Scottish Secretary. It was starting from that common ground that the noble and learned Lord proceeded to defend subsection (7).
However, it was at this stage that began to think that there was something in what my noble friend was saying, because I cannot for the life of me see why the mere fact of public interest and urgency should deprive the subject in this case, and this case only, of the rights which he would otherwise be able to invoke by reason of hybridity. In other words, if the noble and learned Lord is right in saying that the rights inherent in hybridity ought not to exist in this case, I cannot see why they should exist in any other. But if Parliament, for very good reasons, over the centuries has given the subject a right in cases of hybridity which he is able to invoke, even though the public interest is urgent, I cannot see why an exception should be made in this case. That is where the answer of the noble and learned Lord failed to satisfy me.
Lord McCLUSKEY: It seems that should not have spoken—
Viscount COLVILLE of CULROSS: But the noble and learned Lord still has feet!
Lord McCLUSKEY: That is the trouble. I recently read a book by the noble and learned Lord entitled The Dilemma of Democracy. In the chapters the noble Lord allocated various cheers for different things: two cheers for collective bargaining and one cheer for the incomes policy. I am not sure how many he would award for hybridity. Perhaps very few. I have found ill my six or seven, or 46 or 47, days in the course of the Committee stage of this Bill, that it

1767
has been an educative process. I have been educated out of my mind, to use a colloqualism. I think that the wise thing for me to do, rather than to accept the Amendment because I do not know where it would take me, would be to say that I will take no further interest in this matter other than to pass it on to those who understand these matters. In due course, I hope to stand at this Dispatch Box and read out a convincing answer.
Viscount COLVILLE of CULROSS: We shall await that day. I agree with my noble and learned friend Lord Hailsham that that answer was not such. There is no reason given at the moment by the Government for this. Certainly, if there is no convincing reason given—all joking apart—I do not think that this is justifiable, if we cannot have the kind of specific cases on which it has been argued before and accepted by the House. There is no way in which one can be specific about this. If one cannot be specific, the case must fall. I hope that the noble and learned Lord will come back at the subsequent stage merely to remove the subsection. In order to give him an opportunity to do so, I beg leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
10.5 p.m.
On Question, Whether Clause 37 shall stand part of the Bill?
The Earl of ONSLOW: May I ask the noble and learned Lord, Lord McCluskey, to help me on this? The first part of Clause 37(1)(a) refers to an instrument made by a Scottish Secretary. Earlier the noble and learned Lord was talking about naked statutes being conferred, or something was produced by statute and the powers were naked, or something along those lines. I should like to ask the noble and learned Lord how these Scottish Instruments are made by the Scottish Secretary? How are they going to be made? What checks and balances will there be on them? Who is going to make sure that the standing orders of the Scottish Assembly on Scottish Instruments are actually fair, right and above board?
1768
The question of hybridity comes in yet again and if the noble Viscount, Lord Colville, and the noble and learned Lord, Lord Hailsham, tend to be frightened of treading upon hybridity I confess that I am totally terrified about it. I will make one tiny effort. If we do have a question of hybridity or the personal rights of the subject being offended by a Scottish instrument or by the Scottish Assembly, how are these rights going to be protected and how are we going to make sure that this process of making Instruments is legally and morally and ethically sound?
Lord McCLUSKEY: If I might seek to answer these questions, first of all the Instruments referred to in Clause 37, which are made by the Scottish Secretary, I presume will be made under Standing Orders of the Assembly. That is the first point. The second point: who will ensure that they will be fair and above board? Once again, unless one supposes that the role of Parliament is to nursemaid the Assembly into producing standing orders which in the judgment of this Parliament are fair, then the control over the fairness lies with the Assembly itself. The Assembly itself looks at the draft standing orders. It may model its own draft standing orders upon the direction it receives from the Secretary of State under Clause 7(1), but ultimately the control as to fairness and to ensure that the standing orders are fair and above board comes from the political control within the Assembly itself.
As to hybridity, again this is not a matter which this Bill seeks to determine in relation to the Instruments made by and which may be made by a Scottish Secretary. As the noble Viscount mentioned when he spoke to this Amendment, he would contemplate that hybridity would be a matter that would be dealt with within the standing orders of the Assembly itself. I would hope so. He reminds us it might be. One would hope that they would have to deal with it. After all, the kind of problem which has produced Standing Orders here for hybrid Instruments is the same kind of problem as will exist in Scotland in relation to similar matters, and one would expect that the Scottish Assembly will bring not only robust political maturity but even a little humility to bear. It can model itself on Standing Orders which have stood the

1769
test of time and examination in this Parliament. They will model themselves on that and produce appropriate Standing Orders to cover this kind of question. I hope that is a satisfactory answer to the noble Earl.
The Earl of ONSLOW: It satisfies me a little, but let us take ourselves back to Sinn Fein and the 1919 Election.
Lord MACKIE of BENSHIE: May I suggest that if the keen legal brains of the noble Viscount, Lord Colville of Culross, and the noble and learned Lord, Lord McCluskey, have already admitted that they need to take these matters away for further study, then the same might be said, or more might be said, in the case of the noble Earl, Lord Onslow, and his own equipment!
Lord HAILSHAM of SAINT MARYLEBONE: Do not be put down, my dear friend!
The Earl of ONSLOW: After naked statutes and the noble Lord's equipment, I should like to say that I am not really addressing my mind totally to hybridity. I am trying to assume, and I am not casting aspersions. However, politics is a hot business and people become cross and angry with each other, and it is possible-1 am not saying that it will happen—that totally unsatisfactory Standing Orders could be produced on the question of Statutory Instruments. Let us assume, again, for the sake of argument, that a rather nasty collection of Scot Nats. come to power. I am not saying that it will happen, but it is possible. What check is there? That is all that I am asking.
Lord McCLUSKEY: Perhaps the noble Earl will allow me to say that we have already spent literally hours discussing the kind of question that he has raised tonight. No doubt he has not yet had an opportunity to study the Official Report but we discussed this matter in relation first, to Clause 3 and then to Clause 7. There is a whole fasciculus of clauses—if your Lordships will forgive me, at this time of night, for using that legal expression--commencing with Clause 23 and going right through to Clause 28. Therefore, we discussed these matters repeatedly and to the immense satisfaction
1770
of all who were present. I am sure that if the noble Earl cares to read what was said on those occasions he would find the answers not only to the questions that he has asked but to many other questions.
Lord HAILSHAM of SAINT MARYLEBONE: As a matter of fact, I think that I am partly responsible for my noble friend's intervention because it arose out of a question he asked me and to which I was unable to give a rational answer. However, I think that I understood the question more when it was put to me privately in my ear than when it was put across the Floor to the noble and learned Lord. I should like to put it in the following way because I think that the noble and learned Lord could be forgiven for not understanding the same point as I understood from the question which was put to me. Quite clearly, subsection (1) of this clause implies that a Scottish Secretary can make subordinate legislation of one sort or another by Instrument. What my noble friend asked me, and what I was unable to give an immediate answer to—which 1 think prompted this question—was, where is the power to make subordinate legislation to be found in the Bill? The Scottish Legislative Assembly has certain powers of legislation. Does that inherently carry with it the right to confer upon one of its officers the right to make subordinate legislation? I think that that was what my noble friend was asking, and it is my fault that I was unable to give him an immediate answer.
Lord McCLUSKEY: It is no doubt my fault for not recognising that that was the question. The answer appears on page 79 of the Bill where, in Schedule 16, under the reference to the Statutory Instruments Act 1946, we see that there are certain Amendments carried by virtue of Clause 78(2). Indeed, this takes the matter a little further than I signified in relation to my rather tired answer about Standing Orders because, of course, it says—and I shall simply read one of the new subsections of the Statutory Instruments Act added by this Schedule:
"In relation to a Statutory Instrument required to be laid before the Scottish Assembly the foregoing provisions of this section"?
that is to say, Section 4 of the Statutory Instruments Act 1946—

1771
"shall have effect as if for any reference to Parliament or to each House of Parliament there were substituted a reference to the Scottish Assembly ".
I have obviously satisfied the noble and learned Lord, Lord Hailsham of Saint
1772
Marylebone, who is looking very satisfied; I hope that through him I have satisfied the noble Earl, Lord Onslow, whose question was interpreted to me through the noble and learned Lord.
Clause 37, as amended, agreed to.
Clause 38[Industrial and economic guidelines]:
10.16 p.m.
The Earl of PERTH moved Amendment No. 336:
Page 19, line 29, after ("Treasury") insert ("and after consultation with the First Secretary").
The noble Earl said: I could wish for several reasons that this clause was being considered early in the day rather than late at night. One is that the attendance in the Committee on what, I think, is one of the most important clauses is naturally rather smaller than it would be earlier in the day. When 1 look round I see a rather meagre attendance on the Labour Benches; ditto on the Cross-Benches; the Liberals, as one might expect, arc somewhere in the middle and the Conservative attendance is very good.
Several noble Lords: Hear, hear!
The Earl of PERTH: Be that as it may, we have up to now today discussed things which are entirely negative—that is, Clause 35, dealing with power to move the rejection of certain Assembly Bills; Clause 36, dealing with power to prevent or require action; and Clause 37, dealing with power to revoke subordinate instruments.
Now we are coming to something which is quite different and which potentially provides a constructive and very important role for the Assembly to play. Indeed, I would go further and say that, if this question of the economic functions of the Assembly had been handled properly by Parliament in days past, we might never have had any need for an Assembly. It is a fact that over the years in Scotland we have again and again had the feeling that our economic development and our economic problems were not being properly considered by Parliament. This has led to a very strong movement in Scotland to rectify the situation and has encouraged not only the growth of the Scottish National Party but also a general feeling that we must have an Assembly to do the sort of things that have not been done in Whitehall.
I shall not elaborate further on this because it is something which I have
1774
touched on again and again. Indeed, I spoke about it during the Second Reading debate. Many other noble Lords have made the same point and have had the same feelings. However, I think that this clause becomes even more important because, as your Lordships know, oil—which is one of the key resources today and which has in some degree supported the economy of Scotland—will not last for ever. In 10 or 20 years' time, I can see the same sort of thing happening in Scotland as happened before when shipbuilding, steel-making and heavy engineering left Scotland and when the coal ran out. As a result, we were faced with all sorts of economic problems.
How can that best be remedied? I should have hoped that the Assembly would have had more powers than it is being given to take the action which is necessary now rather than waiting until later. However, let us look at what we have. We have the Scottish Development Agency; we have the Highlands and Islands Development Board; and we have the local authorities in relation to economic development. All these will come under the powers of the Assembly. With the help of the Assembly one may hope that they really will make a good job of it.
But it is not as easy as that, because what happens under this Bill?—the Secretary of State shall, with the approval of the Treasury, prepare guidelines on all these matters. The Secretary of State will not have consulted, as things stand now, with the Assembly in any way before he has prepared the guidelines. Far worse, he has to have the approval of the Treasury. I should have thought that really the Treasury has enough when it controls the purse-strings, without needing to approve the guidelines set out by the Secretary of State.
I should indeed have liked to move an Amendment which was wider and excluded the approval of the Treasury, but I have been told by others who are wiser than I am on these matters that this is a necessary sentence to include in the clause and that the Treasury always has the last word. Be that as it may, I feel that for these guidelines to be formulated by the Secretary of State in what I would call a vacuum—that is to say, without any reference to the Assembly at all—must be wrong.

1775
A noble Lord with whom I consulted before I put down this Amendment made a point which I take seriously, as indeed I take all the points he makes; namely, that if, as my Amendment suggests, the First Secretary of the Assembly has first to be consulted, then it may mean that things are delayed and that the Assembly cannot get down to the business of trying to work with the Scottish Development Agency or the Highlands and Islands Development Board from the start. I thought seriously of making an Amendment to my Amendment which would say that after the Assembly had been set up, then it would be for the Secretary of State in subsequent guidelines to consult with the First Secretary.
I thought, after reflection, that it was better to delay the guidelines coming into effect, or indeed being promulgated, until the Assembly had met and until the First Secretary was established and could be consulted, because to me if you set out guidelines without the chance anyhow of the First Secretary saying something about them, then you are going to have deep resentment on the part of the Assembly when it finds out what the guidelines may be. So I have put down my Amendment which says:
"The Secretary of State shall with the approval of the Treasury and after consultation with the First Secretary prepare guidelines".
In other words, I am asking that before the guidelines are promulgated we wait until the Assembly has been established, until the First Secretary has been chosen, and then the Secretary of State can consult with him—consult; he has not got to take what he says—and has a chance to know how the Assembly feels on these vitally important matters.
The only other thing I would say at this moment is tnat I hope that the noble Lord who is to teply will give us some guidance on the thinking of the Government at the present time on these guidelines. Therefore, my Amendment has a dual purpose: first, to suggest that it is really something on which the Assembly should be given a chance via its First Secretary to take a part in drawing things up; secondly, it is a probing Amendment to find just what the Government have in mind when they talk about "guidelines". I hope that that is
1776
clear enough as an introduction, and I beg to move.
10.25 p.m.
Lord DRUMALBYN: Before we can consider this matter rationally we must know from the Minister what the guidelines will be about. I hope he will deal with the subject so as to show the broad aims of the guidelines, bearing in mind that under Schedule 10(2) the Act relating to the Scottish Development Agency is not included, apart from references to a long series of matters which are quite difficult to decipher. My understanding is that the provision means, in effect, that those subjects which deal with the environment —the building of premises, the acquisition of land and so on—fall under the Scottish Assembly, while the actual economic development is retained by the Secretary of State, and no doubt to some extent by the Secretary of State for Industry through the National Enterprise Board. The Highlands and Islands present a very curious case because they are lett out entirely. That comes in Schedule 10 where it says:
"The Highlands and Islands Development (Scotland) Acts 1965 and 1968 … Not included".
Section 8 of that legislation says, however:
"In accordance with arrangements approved by the Secretary of State and the Treasury, the Board shall have power to give financial assistance by way of grants or loans … to any person
I take it that the guidelines will establish a Scottish Secretary as agent for the Secretary of State, otherwise I cannot see how guidelines can be given as to the exercise of power by a Scottish Secretary under an Act which does not come under the Assembly with respect to the functions of the Highlands and Islands Development Board; it seems that it can be done only in an agency capacity. I hope the Minister will tell us about that. The other matters are more straightforward, concerning the limits of expenditure, the mechanics of providing loans and so on.
The most important point to remember in economic development is that it has two sides. The first is the encouragement and development of employment and the second is the encouragement of industry. To that extent, the more the powers can be put into one agency the better. If

1777
industry must go through a great many different sources for its grants, loans, permissions, certificates and the rest, that is a handicap, particularly when enterprise comes, as it so often does to Scotland, from abroad. I hope, therefore, that in the guidelines that point will be borne in mind. We look forward to hearing from the Minister, and let us not be in any doubt about the great importance of this clause.
Lord MACKIE of BENSHIE: I thought that the noble Lord, Lord Drumalbyn, was perhaps wanting to hear what the noble Lord had to say before he made his points, but as he has laid them out very clearly I should like to make my own, and my Party's, position on this miserable clause perfectly clear. This is a supreme example of what I was talking about earlier, regarding the need to appreciate the fears of certain people about an Assembly. The noble Earl, Lord Perth, has done a great service in bringing forward this Amendment, if only so that we can express our fears and our displeasure as to this clause which 1 accept only because it probably is necessary so that we can get the Bill through at all. But really it is quite ludicrous that we should have a phrase like this:
"… as to the exercise by a Scottish Secretary of the powers under the Scottish Development Agency Act 1975 with respect to … the promotion, financing, establishment, carrying on, growth, reorganisation, modernisation or development of industry or industrial undertakings;".
How the devil can any organisation promote industry when every single thing that it does is the subject of guidelines from the Treasury? The Treasury is a marvellous body for laying down the conditions, and making people economical, and that kind of thing, but it is not a body to guide the development of industry. The Government ought to have taken the example of the protection of industry carried on by the Oslo Parliament in the successful years since the war. During that period they were about eight times —I would not stick rigidly to that figure —as successful as we were in Scotland in developing industry.
The reason for that was that they had a small, tightly-run Government Department which knew what it was doing, and which was able to deal directly with
1778
industrialists and to offer them, within the confines of the money supplied from this country, admittedly, a personal service which was of tremendous advantage to the Province. The same is true of the Highlands and Islands Development Acts. and their function as related to economic development is also to be subject to guidelines, which has not been the case in the past.
The noble Lord, Lord Campbell of Croy, talked about ill-disposed people who wanted to alter the future, to advance from the position laid down by this Bill with regard to the Scottish Assembly. That includes me because, although I am not ill-intentioned, I certainly want to see the kind of condition we have been talking about altered in the future when confidence is established.
I hope that the noble Lord, Lord Kirkhill, will be able to satisfy us on these points—though I am perfectly sure that he cannot because in itself this is an unfortunate clause which will not promote the advancement of industry, but will in fact hamper it. However, I hope that it will establish confidence among people in the rest of the United Kingdom that a Scottish Assembly will not harm them, although it can do considerable good to Scotland.
The Earl of SELKIRK: I agree with my noble friend Lord Perth that this is an extremely important clause. Since Second Reading, I have tried to persuade the Government to clarify for what the Assembly, Convention, or whatever you call it, really is responsible. Like my noble friend Lord Drumalbyn, I have sought to understand what on earth the Scottish Development Agency has to do with the Scottish Executive, and it is confusing beyond belief. I do not know what the guidelines are to be.
I should like to give one or two examples of what I have in mind. The Highlands and Islands Development (Scotland) Act is not included in Part III of Schedule 10. I thought that, if it was not included in Part III, it had nothing to do with the matter; but then one finds that it turns up in Schedule 7. What the connection is between Part Ill of Schedule 10 and Schedule 7, I do not know. In Schedule 7

1779
there is, apparently, a reference to three sections of that Act, which have some bearing on the matter in question, though what bearing I do not know. In these sections the Act refers to directions and advice to be given to the Highlands and Islands Development Board, and it deals with the duties of the Board. Presumably a report is made, and there is also something to do with the acquisition and disposal of land.
Then there is the Scottish Development Agency, also not included in Part III of Schedule 10 except for 14 mysterious items, as my noble friend said, which apparently are included: financial assistance, compulsory acquisition, reconstruction of premises, managing sites, developing environment and derelict land, and, finally, it can do anything to discharge its functions. Then we come to another one in Schedule 10 which is also not included in Part III of Schedule 10. That turns up in Schedule 5 and in Schedule 7. In one case it deals with the comprehensive acquisition of land and in the other case with the disposal of land.
What is really intended? Can we really chuck this sort of stuff at the benighted Scots and expect them to understand what on earth it is about? I know that the Secretary of State can give guidelines and can ask for Parliament's assurance on it, but what is it? Are they going to have little executive powers under one or two sections from each of these two or three Acts? What is it? Can we see the guidelines? Why not state in Parliament what their responsibilities are? Is it not really grossly unfair to the Assembly to leave them an utterly vague statement of this kind which really means nothing to anybody? I ask that of the noble Lord, though he probably will not answer it tonight; but may we say that we really would like to have an answer. I know these matters are not easy, but perhaps we can have some answer, because I think it is very unfair not to say what their responsibilities are.
The Earl of LAUDERDALE: I should like to support my noble friend Lord Selkirk on this. As a matter of fact, this seemingly simple clause goes to the heart of the dilemma of the Bill. On the
1780
one hand, the cry in Scotland is for a better economy; on the other hand, the United Kingdom says that you cannot have fiscal, tax and other advantages that would be disruptive to the United Kingdom, and the only way to establish such would be behind a Customs wall, which means separation. So the Bill comes down on the side of a horrible sort of hybrid compromise. We know that, fundamentally, no amount of incentives to industry are as important as the level of inflation, the control of the money supply and the banking system, which is the economic case for United Kingdom coherency. Having said that, we therefore get the attempt to try to compromise some regional advantages to Scotland within a unitary economic system, and hence this extraordinary guideline business.
I should like to support very much what my noble friend Lord Selkirk has said in asking for some indication as to the kind of guidelines that are to be given. Can we know what the Government's thinking is, if not tonight then the next time the Committee meets? For example, there are questions about the location of industry and regional development which are to some extent questions of financial and other fiscal incentives, coupled with questions relating to the development of the infrastructure. Will it be possible? Will the guidelines make it possible for Scotland to offer differential incentives to incoming industry? We realise no tax differential is possible unless or until the Assembly has taxation powers, but, meantime, will the guidelines make it possible for differential incentives to be offered to industry?
Furthermore, will it be possible to widen the definition of industry? Up to now it has been manufacturing industry. What about service industry, what about commercial enterprise, what about office development, what about the improvement of communications? These are all matters which are very germane to the economic health of Scotland, on the one hand, and, on the other, the ability to develop a neglected region of the country within the structure of a coherent unitary economic system. They are matters which are very relevant to the various sub-headings of this clause and the related Schedule; and I think we are entitled to have some idea as to the sort

1781
of guidelines, relevant to the points I have mentioned, which will be forthcoming and, indeed, as to what is the Government's thinking.
At present we are invited to say: "There shall be guidelines!". You might say, "There shall be fresh air; there shall be whisky galore; there shall be all sorts of things!". Seriously, let us know what the Government have in mind. We are not trying to be negative; and, certainly, when the noble Lord, Lord Kirkhill, is on the Front Bench preparing to reply, he elicits from me a sympathetic approach rather than the somewhat abrasive approach elicited from me by the noble and learned Lord, Lord McCluskey. I am not trying to "needle" him or to be awkward or to put negative questions. But I think we are entitled to some sort of indication of the Government's thinking and intentions.
10.41 p.m.
Lord KIR KHILL: It has become evident from all that has been said thus far in relation to this Amendment that noble Lords would appreciate a very clear, and I hope concise, expression of the Government thinking on this very important matter. I think that the noble Earl, Lord Perth, in placing this Amendment before the Committee has done all of us a signal service. I will attempt—but I must crave the indulgence of noble Lords on this—to express the Government's view. This occasions my reading at some length; I apologise beforehand for so doing, but I think that it is necessary, in so far as it is possible, to dot the i's and cross the t's. This is what has been asked of me. Whether or not it will enable the noble Lord, Lord Mackie of Benshie, subsequently to feel less or more disappointed or of a comparatively happier disposition, the next ten minutes will show.
This is the first of a number of Amendments, as the Committee will realise, relating to industrial and economic guidelines. I think that they apply in three broad areas: the Scottish Development Agency, the Highlands and Islands Development Board, and in the more general area of the disposal of premises or land for industrial purposes. It has been made perfectly clear on many
1782
occasions that the Government intend to retain responsibility for regional and industrial policy. But it has also been made clear that, in the Government's view, it is entirely appropriate that the Scottish Administration should become responsible for certain functions of the Scottish Development Agency and the Highlands and Islands Development Board which are purely Scottish bodies with an important role to play in aspects of Scottish life extending beyond matters of regional and industrial policy. To cater for this, the Government have provided arrangements in the Bill under which the administration of these bodies by the Scottish Administration will be subject to guidelines. This is the point at which we begin to discuss these matters.
The aim of the guidelines is to avoid unfair distortions of competition by ensuring that assistance to industries is provided on comparable terms throughout Great Britain, having regard to the different needs and problems of different parts. They will also prevent the bidding up of assistance to firms which could lead to demands for retaliation from other parts of the country and erosion of the Government's policies and also, potentially, to difficulties with the European Commission.
The way in which the guidelines will work is that they will be transmitted from the Government to the Scottish Administration, and subsection (4) of Clause 38 obliges the Scottish Administration to use its powers to give directions, approvals, et cetera, to the Scottish Development Agency and the 1-1IDB and, in relation to the disposal of premises, to those bodies and also to local authorities and new town development corporations in such a way as to give effect to the guidelines.
The implementation of the guidelines and the enforcement of the resulting directions are thus devolved but the Government will have reserved powers to ensure that the guidelines are observed. In particular, Clause 36(1) empowers the Secretary of State to direct the Scottish Administration to use their powers to secure compliance of the guidelines. Subsection (5) of Clause 38 provides that the guidelines must either be contained in an order of the Secretary of State or determined under that order. This means, I am advised, that the main guidelines

1783
will be published in the Statutory Instrument, but that there is also some flexibility to permit more detailed material, for example material concerning minimum interest rates which must reflect changing commercial rates, to be altered from time to time without the need for an amending Statutory Instrument each time. The orders will be subject to the Negative Resolution procedure under subsection (6) of Clause 38.
I think that it would be helpful towards a better understanding of the purposes of the guidelines if I sought to explain how they are intended to affect the three different areas in which they apply. Indeed, noble Lords have asked me to do that. First, the Scottish Development Agency. Section 2(2) of the Scottish Development Agency Act 1975 sets out the Agency's functions. The first three functions in that enactment are to be covered by guidelines under subsection 1(a) of the clause. These functions are:
"(a) providing or assisting in the provision of finance to persons carrying on or intending to carry on industrial undertakings;
(b) carrying on, or establishing and carrying on, whether by themselves or jointly with any other person, industrial undertakings;
(c) otherwise promoting or assisting the establishment, growth, reorganisation, modernisation or development of industry or any undertaking in an industry ".
If these functions were carried out in such a way as to provide assistance to industry on more generous terms than those available elsewhere, it would undermine the Government's regional policies and adversely affect industry in other parts of the country. The guidelines will ensure that this does not happen. The wording of the subsection covers these three functions in the constituting enactment. Reports on these "guideline" functions are to be sent to the Secretary of State as well as to the Scottish Administration and will be laid before Parliament as well as the Assembly. This is the effect of paragraph 47 of Schedule 16 and it will enable Parliament to monitor the effect of the guidelines.
It is intended that the guidelines should oblige the Scottish Administration to require the SDA to continue to operate in a commercial manner and hence to invest in viable projects which are expected to provide a reasonable commercial return over a period. It will, however, be able
1784
to take a longer term view than private sources of finance. The guidelines will therefore cover such matters as: target rates of return; minimum interest rates on loans made by the Agency; and circumstances in which the Agency may make grants.
In addition, the guidelines will provide for the observance by the Agency of proper standards of commercial behaviour —for example, avoiding giving any unfair advantage to companies in which they have an interest in competition with other companies. The Scottish Development Agency is already working to similar conditions to these and, in England, the National Enterprise Board is required to observe guidelines on similar lines.
The powers under Section 5 of the Scottish Development Agency Act, which permit the Secretary of State to direct the Agency to exercise his powers of selective financial assistance under Section 7 of the Industry Act 1972, are excluded from groups in Schedules 10 and 11 and are not, therefore, within the legislative competence of the Scottish Assembly or the executive powers of the Scottish Executive. No guidelines are, therefore, needed for this reserved matter. The environmental and derelict land functions of the Agency are fully devolved in Group 6 (Land use and development) of Schedule 10 to the Bill. Guidelines are not necessary because the exercise of these functions could not be used unfairly to distort competition or to bid up incentives to industry.
As regards the Highlands and Islands Development Board, the Scottish Administration will be responsible for both the economic and social development functions of the Highlands and Islands Development Board. "Economic development" is not, in general, a devolved matter under Schedules 10 and 11, and subsection (1)(b) of Clause 38 provides that guidelines will be made relating to these functions of the Board, but not to its social development activities. The guidelines will serve the same broad purpose as those for the Scottish Development Agency in subsection (1)(a). They are designed to ensure that there can be no conflict between the economic development activities of the Board, for which the Scottish Administration will be responsible, and the Government's national economic policies for the whole of Great Britain.

1785
The procedures for these guidelines are the same as those for the Scottish Development Agency, and reports on the "guideline" functions of the Board will be sent to the Secretary of State as well as to a Scottish Secretary: this is provided for in paragraph 18 of Schedule 16. The Board has wide powers to give selective assistance to industry, to make investments, and to carry on businesses, and the guidelines will, therefore, cover matters such as criteria for considering applications for financial assistance for industrial and commercial enterprises, overall limits of assistance in individual cases, whether by grant or by loan, and terms of loans.
The third area for the guidelines is the disposal of premises or other land for industrial purposes. The guidelines relating to disposal of premises or other land for industrial purposes will nave the same aim as other industrial and economic guidelines: to prevent unfair competition and bidding up of industrial assistance. If public bodies in Scotland with powers to dispose of industrial property were permitted to do so on terms involving a greater degree of financial assistance than was available to industry in comparable other parts of Great Britain, this would constitute a significant new regional incentive. Such an arrangement could undercut the Government's regional policies and lead to irresistible pressure for similar measures elsewhere. The aim of the guidelines will be to secure broad comparability of disposal terms throughout Great Britain.
The disposal guidelines will apply to all public bodies capable of exercising this land disposal function. Subsection (2) of Clause 38 lists these bodies. They at present cover local authorities and the new town development corporations in addition to the Scottish Development Agency and the Highlands and Islands Development Board. The enactments concerned are listed in Schedule 7. Subsection (3) of the clause ensures that if the Scottish Assembly equips other bodies with equivalent land disposal functions the Secretary of State will have powers to extend the guidelines to the exercise of the Administration's powers in relation to these bodies.
If I may turn now to Amendment No. 336 in the name of the noble Earl, Lord Perth, what I have said will' I hope,
1786
have made it clear that the provisions of Clause 38, as they stand, are an essential feature of the arrangements for the future administration of the industrial functions of the Scottish Development Agency, the economic development functions of the Highlands and Islands Development Board and the industrial land functions of various other public bodies.
I have explained in some detail the kind of matters to be covered in the guidelines, and this will, I think, have served to demonstrate that there is no room for effective consultation between the Government and the Scottish Executive about the essential contents of the guidelines, as distinct from points of detail.
As a matter of practice, it would be very strange indeed if the Government did not consult the Scottish Administration, which at that stage would be a "shadow" Administration still to assume its full executive powers in the course of preparation of guidelines, and again later before any changes were made to them. The Government expect that regular consultations will take place at the appropriate level on all matters of common interest, initiated by themselves or by the Scottish Administration, as appropriate. The Government have already announced their intention to propose arrangements for consultations of a more formal kind. This assurance which I give to your Lordships may, in part at least, reassure the noble Earl, Lord Perth, and the noble Lord, Lord Mackie of Benshie.
If I may elaborate, in his Statement in another place on 26th July 1977, which was repeated by my noble and learned friend the Lord Chancellor in your Lordships' House, the Lord President of the Council said:
"Additionally, on the establishment of the new administrations, it is the Government's intention to seek their agreement to the establishment of Joint Councils for Scotland and for Wales, on which representatives of the Government and the new administrations could consult as necessary on matters of common concern. These would provide a valuable means of ensuring continuing co-operation and consultation."— [Official Report, Commons, 26/7/77; col. 315.1
The Government consider that the arrangements for consultation should rest on this non-statutory basis. it is not practicable to specify all the circumstances in which consultation will be desirable, or even essential, for the

1787
working of devolution. To pick out certain instances could only throw doubt on the importance of consultation in others, and could provide scope for challenge as to the propriety of action taken by Ministers in particular cases, by encouraging arguments as to whether or not contacts which had taken place amounted to statutory consultation.
The inclusion of a statutory consultation requirement in Clause 38 would be a cause of particular embarrassment, if it resulted in the impression that the intention was that the guidelines should be, in effect, agreed between the Government and the Scottish Administration. The guidelines will, in practice, delineate the boundaries of the executive discretion to be available to the Scottish Administration on matters of great political sensitivity. The form of the guidelines, and the manner in which they operate, will be closely watched by those concerned with industrial development in the English regions and other counties of the United Kingdom. It should, therefore, be clear, without scope for misunderstanding, that they are in a statutory sense the responsibility of the Government and Parliament and of no one else.
The Government are therefore unable to accept the noble Earl's Amendment, because of the difficulties which it could raise in the context of consultations on many other important matters, and because of the particular importance of making it clear to people throughout the United Kingdom that the guidelines are entirely the responsibility of the Government and Parliament, acting in the interests of the United Kingdom as a whole and taking into account the interests of all its parts.
That is a rather extended reply. I think that it is as complete a reply as I can give at this stage. But there were a number of specific points put to me before I rose to speak. May I say, first, to the noble Lord, Lord Drumalbyn, in an attempt to be as helpful as I can at this stage, that the economic functions of the Scottish Development Agency are devolved executively in Schedule 11. In regard to the Highlands and Islands Development Board, the powers are devolved executively in Schedule 11, Group D. The reference to Schedule 10 concerns legislative corm
1788
petence. That is to be found at page 58. This means that the Assembly will have no power to alter the existing legislation on the Highlands and Islands Development Board.
The noble Earl, Lord Selkirk, asked me two specific points. The key Schedules defining devolved matters are Schedules 10 and 11. The other references to the HIDB and the SDA Acts in this Schedule are incidental and do not relate to what is and what is not devolved. The HIDB are listed in Schedule 7 because, under Schedule 11, all existing executive powers are devolved. These include the powers of Ministers to approve in certain circumstances the terms on which land is disposed of, and enactments conferring such powers are listed in Schedule 7. t apologise again to the Committee for being somewhat lengthy—perhaps more verbose than is my wont but your Lordships wanted, I thought and felt, the Government's thinking to be clearly on the record.
Lord STRATHCONA and MOUNT ROYAL: May I intervene for one moment at this juncture. The noble Lord was certainly not lying when he said that he had made an extended reply. Obviously this is a very complicated matter. It would even have taxed the powers of comprehension of all our legal friends, most of whom have had the sense to go home. May I make a suggestion, therefore, to the Government: that this evening we should not attempt to take the clause stand part debate on this clause, which would give a chance to those noble Lords who are interested in this complicated and important subject to read the noble Lord's extended reply and then come back to him with points which are still unresolved at a later date. We have time to go through the Amendments all the same.
Lord KIRKHILL: I am always willing to accept what appears to be a perfectly reasonable suggestion, and of course I quite agree with that suggestion.
11.3 p.m.
Lord MACKIE of BENSHIE: I should like to make one or two comments. First, I am reminded that I should declare an interest before the noble Earl, Lord Selkirk, puts me in the "cooler" for six months. I am the chairman of a firm in

1789
the far North of Scotland—Caithness Glass—which has the HIDB as a minority shareholder. The HIDB have loaned us some money which we have repaid, and this year I am happy to say that we are paying them 15 per cent. on the money which they have invested in ordinary shares --which miracle has not, I understand, happened in the case of any of the other companies in the Highlands in which they have invested. I say this not only to declare an interest but also to declare some knowledge. I was perturbed by the guidelines, and I am well aware of the political sensitivity or jealousy, to use another word, which this subject invokes.
If we are to lay down substantially, I think the noble Lord said, the same guidelines for the HIDB as regards conditions of loan as we are for the SDA, then it will be wrong. We have to vary those conditions in the case of the Highlands and Islands. I can tell the noble Lord from my own experience that it is infinitely more difficult to develop a factory in Wick than it is to develop one in Perth. Again I have to declare an interest. We hope to rent a factory from the SDA in Perth as well.
The levelling out of the inducements allowed to be given throughout the United Kingdom must be wrong. I hope that the Government will consider doing something about this, or at least that they will be able to vary somewhat the inducements as between the different areas. I should have thought that the suggestion made by the noble Earl, Lord Perth, about the total amount of money allowed for different areas was surely fair. If one region is able to offer certain inducements as against another, then it is open to another region to vary its inducements in the same way.
However, when you come to attract to an area this essential thing, which is first-class young managers, there is a whole degree of different inducements which will bring them there. The most important thing you can do in starting a new business anywhere is to get the right man to run it, otherwise all the other things matter not at all. I know perfectly well from my experience in the Highlands that we have had very good men wanting to come to Wick, for example; they bring up their wives and they run a mile when they see the place. Others may like it, but it is twice as difficult and there are more
1790
factors to be overcome in trying to get good people into an area which is remote from their normal environment, however beautiful it may he. They also have a large amount of extra expense.
For this reason alone, I think the standard guidelines must be wrong. I hope the noble Lord will be able to tell us that the guidelines will not be that standard that one cannot vary; for example, conditions between areas of the Highlands and areas close to a good aerodrome beside Edinburgh. What I fear is that what the noble Lord has told us so far merely confirms my fears that these guidelines will be a grave hindrance to the development of industry in Scotland.
Lord BROWN: I should like to make a small contribution through some knowledge of the working of the 1972 Industry Act. When I heard the proposers of the Amendment and those who followed, I thought to myself, "My goodness, this argument sounds right and if there is a Division I may have to vote against the Government on it"; but when I heard my noble friend's reply from the Front Bench it awoke in my mind certain views which I should like to put before your Lordships, and especially the noble Lord, Lord Mackie of Benshie. It may not be known to him that every one of the schemes to help industry under the 1972 Industry Act has to be approved by the EEC. As a member of a Party which has always been keen for us to continue membership of the EEC, the noble Lord must know that the EEC is hell-bent on equalising conditions throughout the countries which are members. That is for a good reason.
Lord MACKIE of BENSHIE: The EEC has special schemes for areas of social deprivation.
Lord BROWN: That is so, and I have no doubt that the result of the EEC recognising such areas of deprivation would feed through to the Scottish Development Agency, and so on. I do not think that is really a main point of argument. The point is that, unless one gets some equalisation of incentive from the members of the Common Market and, at the same time, from the Scottish Assembly, there will be an increase of the present activity where great international

1791
investment projects are, as the saying goes, "internationally mobile". That is the position which exists at the moment, and one country after another offers to these international companies increasingly large incentives out of the taxpayers' pocket to try to induce them to come and invest their money in a particular country.
We are putting international corporations into a situation where they cannot resist the temptation, when they have a large extra plant to build, to tout countries to see where they can get the biggest boost from the taxpayers' resources. It seems to me to be quite clear that, regrettable as it may be that the Scottish Assembly will not have the degree of discretion over the way in which they use such monies as are made available to them, to create a situation in Scotland which is directly contrary to the principles which the Commission are trying, rather unsuccessfully, to follow, and which would be contrary to the principles of the giving of aid to companies in England, would be regarded by everybody South of the Border as the most grossly unfair thing which one could possibly imagine; and in the long run it would not help Scotland.
I agree it is true that the Ulster Administration had these powers and, as a Scot with connections in the West of Scotland, I was made well aware of it at times by the fact that competing incentives offered by the Ulster Government which could not be offered in Scotland attracted investments out of Scotland into Northern Ireland. The noble Lord is probably aware of this. We cannot go on with this competition with taxpayers' funds for ever. I found the arguments used by my noble friend very convincing, and if there were to be a Division f would certainly vote with my Party.
11.10 p.m.
Lord DRUMALBYN: Before my noble friend withdraws his Amendment, as I expect he is going to do, may I say something to the noble Lord, Lord Brown? I remember very well the Highlands and Islands Development Board Act being introduced in 1964. It started in this House. The whole purpose of it was to give differential incentives to the Highlands and Islands. This remains so.
1792
If it can be done for Northern Ireland, it can be done for any section of the United Kingdom. I am only saying this because I am not sure the noble Lord will be here at the start of discussion when we next reassemble. I should like to study very carefully what the noble Lord, Lord Kirkhill, has said, and I should like to intervene again on the Question that the clause stand part.
The Duke of ATHOLL: The more this goes on the more convinced I become that it will be a disaster if this Bill goes through. I would ask the noble Lord one quick question. What is to prevent the Scottish Secretary and the Scottish Assembly setting up another body which can make grants to attract industries to Scotland? So far as I can see, these guidelines apply only to the SDA and the Highlands and Islands Development Board and to the sale of industrial land. I imagine somewhere in the Bill is a prohibition on them setting up what might be called a Scottish Economic Development Council, or something like that, for the purpose of getting round this particular clause. I myself have no objection to this clause.
Lord KIRKHILL: There is no prohibition in the Bill at that point. The Scottish Assembly will be determining its policies in many directions once it assembles.
Lord BURTON: Could I ask the noble Lord one question? He may have explained it, but I did not catch it. On page 58 at Schedule 10 it would appear to insinuate that nothing in relation to the Highlands and Islands Development Board is delegated, so the Highlands and Islands Development Acts 1965 and 1968 are not included in the matters delegated. I may have got it wrong.
The Earl of SELKIRK: I should like to thank the noble Lord for revealing as much as he has from behind the dark curtain of which we are still substantially ignorant. There is rather a euphemism in the word, "guidelines"; it should be directions and powers. That is really what it is. It is giving clear-cut instructions as to what he is to do and what powers he shall have. I take it this money, which will be from the block grant, will be included when this comes

1793
to be considered, and I take it the Highlands and Islands Board and the Scottish Development Agency will be responsible to two bodies, the Secretary of State and the Executive. I wonder whether we could not be told which of the powers it is proposed to give. I looked at Schedule 7, and it mentions several clauses, but really it is utterly obscure. Even if you arc giving the Executive powers in those clauses, what is intended? Are we going to be told a little more. I think it is desirable that we should be told. I am not underestimating our gratitude to the noble Lord for telling us as much as he has; I feel much wiser than I was two minutes ago. But I wonder whether we can be told a little more of what is intended.
Lord KIRKHILL: Might I say quickly, in reply to the noble Earl, that I should have thought that that was perhaps as comprehensive a statement as this House has heard from a Government Minister for a long time. I am reluctant to say that I am going to tell the noble Lord anything more, when I say to Lord Burton that I did reply to the point that he made. I replied earlier to the point made by Me noble Earl, Lord Selkirk. If he will look at the Official Report tomorrow, he will see that that point was covered. May I make one point more before I resume my seat, I hope finally. The guidelines for the HIDB will not necessarily be the same as the guidelines for the Scottish Development Agency. That is a point worth making.
The Earl of PERTH: I am grateful to all the noble Lords who have taken part in this debate on the Amendment, because it is a very important Amendment, as we have all heard. I am also grateful to the noble Lord, Lord Kirkhill, for giving us such a full explanation of what are the proposed guidelines. The more I heard of them the more I became depressed, and the more I felt, with the noble Earl, Lord Selkirk, that they are not guidelines at all. They are instructions. They are orders to the Secretary of State, the First Secretary, or the Secretaries of the Assembly.
There are powers of enforcement and powers to insist that this, that, or the other thing may be done. As I understand it, there is really very little power
1794
left to the Assembly or to a Secretary to do what they think is right for the development of the economy of Scotland. The noble Lord made great play with the fact that there must not be unfair distortions; there must not be bidding up. If you do one thing for Scotland, then that might be true; that might be fair, the one thing being an equalisation of transport costs throughout the country. But you seem to be totally unaware of this fact.
The Highlands and Islands Development Board and most of Scotland are greatly handicapped by the enormous differences in costs. "Oh, but we must not bid up. We must not be unfair to the rest of the country". If I had to say who was unfair, I would say that the Government over the past years have been wholly unfair to Scotland in relation to such matters as subsidies and the building of the motorways, all to the benefit of the other parts of the country, and not to Scotland. This to me is the position and yet it is said: "We must not be unfair; we must not distort". That is not being realistic on what it is all about.
The noble Lord, Lord Brown, said that we must conform with what the EEC is up to. If I recall rightly, the EEC is only too ready at one time or another to encourage those areas which are handicapped for one reason or another. We all know that in the middle of Italy, or Southern Italy, they give every encouragement to remedy distortion and unfairness. But that is not really unfair or distorted. It is perfectly proper, given the handicaps under which they operate.
I am really deeply distressed at, as I think, the misleading features of this clause. We are told that they are guidelines. We were hoping that the Scottish Development Agency could carry out promotion, financing, establishment, growth, reorganisation, modernisation or development of industry, or industrial undertakings. That all reads very well, but we must not do it if it is going to give us any compensation for our handicaps elsewhere. I think that this clause, as it stands, is misleading. It will give great disappointment to those who believe that the Government were trying to do something to set up an Assembly which will help Scotland in its economic reconstruction.

1795
I come back to my Amendment. I would say this: on the question of not allowing consultation, I think that the noble Lord said that it would be embarrassing. I hope that it will be embarrassing. Why would that be embarrassing? Because the Government could not face up to criticism. I think he gives the excuse that we cannot consult with the First Secretary or with the Assembly because it would be embarrassing. It is really one of the weakest arguments I have ever heard. Having spoken with considerable feeling about this, I do not propose at this late hour to move my Amendment to a Division, more particularly as the noble Lord, Lord Strathcona and Mount Royal, made what seemed to me to be an eminently constructive suggestion; namely, that we should consider this later when the Question comes up, Whether the clause shall stand part of the Bill.
So far as I am concerned, in the next day or so I shall try to study what has been said by the noble Lord, Lord Kirkhill, but I doubt that I am going to find anything to be satisfactory. While we may not be able to go further on it during this Committee stage, I certainly have it in mind, in the light of what I have heard tonight, to move something different at Report stage. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Lord STRABOLGI: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

BRITISH TRANSPORT DOCKS BILL
Brought from the Commons, read la and referred to the Examiners.