§ 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 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.
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?
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. 1676Twill 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 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.
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.
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.|
§ 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.
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.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.