Lords Sitting of 7 June 1978

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

LORD PLANT
Cyril Thomas Howe Plant, Esquire, C.B.E., having been created Baron Plant, of Benenden in the County of Kent, for life—Was, in his robes, introduced between the Lord Houghton of Sowerby and the Lord Allen of Fallowfield.

HEPATITIS
2.47 p.m.
Baroness MASHAM of ILTON: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether infective hepatitis is on the increase and what steps are being taken to safeguard the public from food such as infected mussels.
Lord WELLS-PESTELL: My Lords, the annual number of notified cases in England and Wales fell from 23,580 in 1969 to 5,104 in 1977. In the recent outbreak of viral hepatitis associated with mussels, investigations by the local authorities concerned, assisted by officers of the Health Departments and of the Communicable Diseases Surveillance Centre for England and Wales, pointed to mussels from a single processing plant as the probable source of infection. Action is in hand to ensure that suitable pre-cautions are taken against further infection when processing is resumed next season. Further, the Departments concerned are considering whether general guidance could usefully be issued to local authorities about measures to reduce the risk of all kinds of food poisoning associated with shellfish.
Baroness MASHAM of ILTON: My Lords, while thanking the noble Lord for his interesting reply, may I ask him what happens in the case of children going back to school whose parents have infective hepatitis? Should they be given gamma globulin and should they be kept away from school? Is the noble Lord aware that my godson was kept away from school for three weeks when he was about to take his "O" levels?
Lord WELLS-PESTELL: My Lords, my information on this particular point is that the risk of infection is small and exclusion is not considered necessary. In the pamphlet which was issued by my Department and the Welsh Office after consultation with the Department of Education and Science—and if the noble Baroness has not seen it, I should be very happy to let her have a copy—the matter of hepatitis is dealt with and it is said that there is no need for exclusion of any kind. Since seeing this pamphlet I have made further inquiries. I find that the recognised world authority on this is Dr. Abram Benenson. In his book, Control of Communicable Diseases in Man, he states that there is no need whatever for quarantine.
Lord SHINWELL: My Lords, can my noble friend assure us that members of the aristocracy do not eat mussels? Is this not a monopoly of the working classes?
Lord WELLS-PESTELL: My Lords, I think that it would be reasonable to say that that might well be considered to be another question.
Lord SANDYS: My Lords, can the Government tell us what arrangement they have made for the destruction of infected consignments?
Lord WELLS-PESTELL: My Lords, your Lordships will know that every district council is responsible, through the health officers, for hygiene and the control of the environment. They have been very active in this matter in the sense that they have been able to give certain advice. My Department is considering this at this present moment. I have seen a draft of a letter which, if I may say so, was prepared before the noble Baroness put down the Question, and which we are

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proposing to send round to local authorities, indicating the kind of prevention measures they can take in the future.
Baroness ELLIOT of HARWOOD: My Lords, as someone who does not eat mussels and who dislikes them heartily—I say so to reassure the noble Lord, Lord Shinwell—may I ask whether, as this has been a really serious outbreak in Yorkshire, the Government are tracing the origins of the outbreak, and seeing whether or not it is possible to prevent the purchase of mussels from whatever source they came, which provided a considerable number of cases of hepatitis in North Yorkshire?
Lord WELLS-PESTELL: My Lords, I want to say this, that I think that the people locally owe a very great debt of gratitude to the senior medical officer of the food hygiene branch at Leeds, who, immediately he became aware of what was happening, wrote immediately to some eight or nine other local authorities, drawing attention to what was happening in his own city, and saying that, in view of the inquiries he made, their cities might also be affected. In point of fact, I think that has gone a long way towards containing this outbreak.
The Earl of HALSBURY: My Lords, on the assumption that the human hepatitis is caused by mussels, has the noble Lord any information as to where the mussels get it from? Do we return it to them in a rather simple, close cycle of the food chain in our sewage, or is it a more complex matter? Has the noble Lord any information on the point?
Lord WELLS-PESTELL: My Lords, I do not think I can give the noble Earl a satisfactory answer to that, except to say it is suspected that they came from Anglesey.

ELIZABETH GARRETT ANDERSON HOSPITAL
2.53 p.m.
Lord SANDYS: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will announce the terms
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of reference of the public inquiry into the proposal to close the Elizabeth Garrett Anderson Hospital.
Lord WELLS-PESTELL: My Lords, the Government do not intend to set up such an inquiry.
Lord SANDYS: My Lords, arising out of that very unsatisfactory reply, may I ask whether the Government can say whether this is a final or interim decision?
Lord WELLS-PESTELL: My Lords, the answer was perfectly clear. The Government do not intend to set up an inquiry.
Lord SANDYS: My Lords, Mr. Ennals made a statement about three weeks ago, in which he indicated that he was considering the matter. Is this his final view?
Lord WELLS-PESTELL: My Lords, my right honourable friend the Secretary of State made it perfectly clear that he was prepared to continue negotiations, he was prepared to continue talks, he was prepared to have further discussion. He intimated that, if necessary, he would be prepared to consider whether he would postpone the closing of the hospital beyond 21st July. He has undertaken to do that. He is at the moment in the process of having further discussions with quite a number of groups.
The Earl of ONSLOW: My Lords, as the noble Lord said that the Government were not prepared to set up an inquiry, could we have the answer, why not?
Lord WELLS-PESTELL: My Lords, I am surprised that any noble Lord in your Lordships' House should ask this question. Discussions have been going on for four years. We have had debates in this House on the matter. We have had a large number of Questions put down. I think that even those who are strong supporters of the Elizabeth Garrett Anderson Hospital could not deny that there has been very full, frank and prolonged discussion on this matter.
Lord BROCKWAY: My Lords, in view of the fact that after the decision was reached by the Government there has been very strong public pressure on this issue, not only from wide public opinion, the

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Women's Labour Conference, but also from doctors and the trade union movement, may I ask the Minister whether the Government will reconsider this issue, despite all the difficulties involved?
Lord WELLS-PESTELL: My Lords, I have made it perfectly clear that my right honourable friend the Secretary of State is having further discussions with a large number of groups of people who want to see him. He cannot really do more than that.
The Lord Bishop of NORWICH: My Lords, would the Minister consider asking the new Lord Lieutenant of London who, I believe, is in this House, and who knows a great deal about women's work, whether her advice would be of use to the Minister? And we congratulate her.
Lord WELLS-PESTELL: My Lords, if any Member of your Lordships' House feels disposed to put a point of view to my right honourable friend, I am sure that he would be glad to have it.
Baroness WARD of NORTH TYNESIDE: My Lords, may I ask this of the noble Lord: When it was announced in many newspapers that there would be an inquiry, why was that announcement not then contradicted—or has the Minister changed his mind for some reason or other?
Lord WELLS-PESTELL: My Lords, my right honourable friend has not changed his mind. Noble Lords and the public at large would be well advised not to believe everything they read in newspapers.
Lord SANDYS: My Lords, this is a very serious matter, because the Elizabeth Garrett Anderson Hospital was given to understand that the Secretary of State was examining this matter with care. So far as I know, after making inquiries this morning, they were still under the impression that the public inquiry would be granted.
Lord WELLS-PESTELL: My Lords, in reply to the noble Lord, I do not know from where those people obtained this impression. The fact that my right honourable friend the Secretary of State
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is giving further consideration to the matter is perfectly true. The Elizabeth Garrett Anderson Hospital people know full well that they have been in communication with him on a number of occasions in the past few days. They also know that further discussion will take place involving them. I really do not see what more my right honourable friend can do.
Lord SEGAL: My Lords, as Queen Charlotte's Hospital was transferred from Marylebone to Shepherd's Bush, would my noble friend consider naming another hospital, either existing or about to be built, after Elizabeth Garrett Anderson, in order to perpetuate her memory?
Lord WELLS-PESTELL: My Lords, I can give no undertaking of that at all, other than to say that discussions are taking place as to where the work of the Elizabeth Garrett Anderson Hospital should be carried on in future.
Baroness EMMET of AMBERLEY: My Lords, would the noble Lord ask his Minister whether it would not be a good idea to come to a conclusion very soon? He set 21st July as the date for closure. It is very upsetting to a hospital to be faced with a date and not to know what will happen. If we could receive some assurance that something will be done soon, that would be helpful.
Lord WELLS-PESTELL: My Lords, my right honourable friend the Secretary of State made it perfectly clear that, as far as he was concerned, the Elizabeth Garrett Anderson Hospital was going to close on 21st July. In view of representations to him, he is having further discussions. He has intimated that he might be prepared to extend the date—but only extend the date as regards closure. The closure of the Elizabeth Garrett Anderson Hospital will take place, if not on 21st July, at some later date.
Lord HARMAR-NICHOLLS: My Lords, is the noble Lord not aware that what is disturbing is the fact that his statement seems to say that even after the discussions on no account would there be an inquiry? The classical way of settling disputes of this sort, when it has been made perfectly clear that there are different distinct and authoritative

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points of view, is for the matter to go to an inquiry. If, after the discussions, he is still not convinced, then at this stage to rule out the classical way of deciding the matter is disturbing. Is the noble Lord not aware of that?
Lord WELLS-PESTELL: My Lords, the classical way of dealing with matters is not always the best way—a public inquiry by what people would call so-called independent people, who are not people with sufficient knowledge and experience of the running of hospitals. We have consulted. There have been discussions over a period of almost four years with people who know what is involved. No useful purpose would be served by having a public inquiry.
Lord PLATT: My Lords, would Her Majesty's Government kindly reveal who were the people who made representations to the Secretary of State? There was, as is well known, a full discussion in this House, in which the medical point of view was put. Then we hear just now that representations were made to the Secretary of State, and he then reopened the question. By whom were those representations made? Were they from the trade unions, or the doctors?
Lord WELLS-PESTELL: My Lords, certainly there are some trade unions involved, and certainly from some people who were very strongly in support of the EGA's view.
Baroness YOUNG: My Lords, would the Minister agree that a public inquiry is a recognised method of putting to the test opposing points of view on a matter of social policy used extensively in local government matters? Would he not agree that consultation in the terms in which he has described it really means talking to people when your mind is made up, and is therefore unacceptable?
Lord WELLS-PESTELL: My Lords, my right honourable friend the Secretary of State has never denied the fact that his mind is made up on this matter.
Lord LEATHERLAND: My Lords, is my noble friend of the opinion that there is something to be said for Ministers who have the courage to make their
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own decisions and not pass the buck to inquiries?
Lord ANNAN: My Lords, is it not the fact that if you have a public inquiry on this matter it would have to range enormously wide over the whole provision of hospital services, and not just teaching hospitals within central London, and that in this matter two or three years could pass before we ever got any kind of recommendations from such an inquiry?

CROWN AGENTS: PLACING OF CONTRACTS
3.2 p.m.
Lord BOYD-CARPENTER: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what directions or advice they have given to the Crown Agents for the Colonies as to the placing of contracts by them with companies blacklisted by the Government for alleged breaches of Government Pay Policy; and whether they will publish in the Official Report the text of the instructions or advice given to the Crown Agents, and the names of the companies involved.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, the Crown Agents have been asked not to place orders with companies breaching the pay policy guidelines when making purchases on behalf of the Government and to take Government policy into account in the placing of contracts on their own behalf. They do not apply this policy when acting on behalf of their overseas principals. The correspondence with the Crown Agents is confidential. The Government are prepared to publish the names of firms against whom discretionary action is being taken, but only if the firms consent.
Lord BOYD-CARPENTER: My Lords, while thanking the noble Baroness for that very revealing Answer, may I ask her, first of all, whether it is in accordance with precedent that directions by the Government to a statutory body of this kind are published? Why is it not being

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done in this case? Secondly, does it not follow that in certain cases the Crown Agents will not be able to help overseas purchasers by selecting the most economical supplier for them, since the most economical supplier may be banned and on the black list? Will that not put the Crown Agents into a position of competitive difficulty?
Baroness LLEWELYN-DAVIES of HASTOE: No, my Lords. To answer the last part of the question first, the Government have repeatedly made it clear that the discretionary powers are discretionary and that all circumstances will be taken into account; both the circumstances of the developing country and, of course, the national interest. Therefore, the answer is, No, to the last part of the question. As to the first part, it is not in accordance with general practice. In fact, the information in this particular case concerns the machinery of government, which it has never been the practice of any Government to reveal.
Lord BOYD-CARPENTER: My Lords, on the last point, which was mentioned first by the noble Baroness, if this guidance or direction is to have any effect at all, it must mean that the Crown Agents are inhibited from placing contracts where, for commercial reasons, they would wish. Therefore, why does the noble Baroness still contend that this is not harming them and their clients in competition?
Baroness LLEWELYN-DAVIES of HASTOE: Because, my Lords, there is absolutely no evidence that it is doing harm. We have no evidence of that. Further, I am quite sure that the House will understand that firms which break the Government's guidelines cannot expect support, because then the Government would be financing breaches of their own policy.
Lord BOYD-CARPENTER: My Lords, I do not want to press the noble Baroness too far, but it is not here a question of Government support; it is a question of whether a Government agency is giving the best possible service to overseas buyers. May I suggest that, if it is restricted in its discretion in choosing where it places those orders, the degree
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of service which it renders must be diminished.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, I have explained that this does not apply when the overseas Governments are the principals. We are not asking the Crown Agents to apply it then. What we are asking them to do is to look at it when orders are being placed by the Crown Agents themselves. All Government Departments would look at breaches of the guidelines in the same way.
Earl FERRERS: My Lords, can the noble Baroness explain whether the Crown Agents are a Government Department? If they are not a Government Department, are they obliged to carry out the requests of the Government?
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, I think the House knows that the Crown Agents are not a Government Department, but they are subject to direction from the Ministry of Overseas Development.
Lord TANLAW: My Lords, since the noble Baroness mentioned the black list, and that companies need not have their names on it, may I ask whether there is a list available as to companies which are on the black list, and, if so, where it can be found?
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, I think the noble Lord misunderstood me. What the Government decided, after consulting all the interested parties, was that if any body had been subject to discretionary powers and they wanted their names to be published they could be, but not unless they wanted them to be.
The Earl of ONSLOW: My Lords, is the noble Baroness saying that overseas principals of the Crown Agents are allowed to buy cheaper produce in the event of that company producing that cheaper produce breaching the pay pause, but that the British taxpayer may not do that and may have to buy something more expensive because they do not pay and are not so efficient?
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, firms which have

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breached the guidelines are more likely to be selling expensive equipment.

THE CIVIL SERVICE: APPOINTMENTS SYSTEM
3.7 p.m.
Lord CAMPBELL of CROY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have any plans for changing the system of qualification, by open examination, for the Civil Service, or for extending the permitted period of five years for service by temporary civil servants.
The LORD PRIVY SEAL (Lord Peart): My Lords, the Civil Service Commissioners, who are responsible for recruitment to all permanent Civil Service appointments, believe that the present arrangements for preserving the principles of fair and open competition are satisfactory. They invite applications for such appointments by public advertisement, to ensure that all those who are eligible under the regulations have an opportunity to compete. As regards the five-year limit on short-term appointments, the Government, in pursuance of their belief that special advisers should become an accepted feature of administration, have begun to explore appropriate ways of ensuring that they will not be required to resign at the end of five years' service.
Lord CAMPBELL of CROY: My Lords, in view of that reply, for which I am grateful, may I ask whether there was any basis for the article on the front page of The Times a week ago, stating that the Prime Minister had issued instructions to devise a scheme for a new class of senior civil servant to be appointed by ministerial patronage? While at present there exists the scheme of special political advisers under the five-year rule, a proficient and professional Service depends upon open competition supervised by the Civil Service Commission. Is the noble Lord aware that our system of recruitment, and our tradition of loyal service to Governments of every complexion, are envied by the rest of the world?
Lord PEART: Yes, my Lords, I accept that, and it is not the Government's intention to ever interfere with that. We accept that. But, as the noble Lord knows, from time to time special advisers have been used by both Conservative and Labour Governments. We will preserve that traditional policy.
Viscount MONTGOMERY of ALAMEIN: My Lords, would not the noble Lord agree that exchanges between industry and the Civil Service, both at home and overseas, have been of great benefit? Would he agree that this is something which should continue to be encouraged and even indeed facilitated by Government Departments?
Lord PEART: Yes, my Lords.
Lord CAMPBELL of CROY: My Lords, I realise that it may be a delicate matter for the noble Lord to reply to my supplementary question, but is he aware that the report in a newspaper stating that the Prime Minister had issued these instructions is somewhat different from mere consideration of the five-year rule?
Lord PEART: No, my Lords; the rôle of special advisers is a matter which is being looked at. There is no doubt about that. After all, one should not always take into account what is in a special paper outside.
Lord CAMPBELL of CROY: My Lords, will the noble Lord give an assurance that, before any such schemes are embarked upon, there will be an opportunity for the matter to be fully discussed by Parliament?
Lord PEART: My Lords, it is important to remember that any change affecting the Civil Service is also a matter for the Civil Service unions. We should always consult them regarding any specific changes. But this system has been working for a long time and we shall have to examine it.
Earl FERRERS: What was the answer to my noble friend's question, my Lords? Would it or would it not be considered by Parliament?
Lord PEART: In the end, if Parliament so wished, of course it would be, my Lords. However, I see no reason at the moment for saying we will have a debate or anything like that. This is being looked at carefully, as it must be, by responsible Ministers.

NUCLEAR SAFEGUARDS AND ELECTRICITY (FINANCE) BILL
Brought from the Commons; read 1ª, and to be printed.

INTERPRETATION BILL [H.L.]
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, I beg to move that this Bill be now read a second time. The Law Commission and the Scottish Law Commission have produced a report on an interpretation Bill which has today been laid before Parliament and the present Bill, where it departs in any matters of significance from the Interpretation Act 1889, is based on recommendations contained in that report. Save for that, the Bill is pure consolidation and makes no alteration in the existing law. If given a Second Reading now, the Bill will go before the Joint Committee on Consolidation Bills in the normal way.
Moved, That the Bill be now read 2ª—(The Lord Chancellor.)
On Question, Bill read 2ª, and referred to the Joint Committee on Consolidation Bills.

SCOTLAND BILL
3.12 p.m.
Report received.
Clause 1 [The Scottish Assembly]:
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 1:
Page 1, line 16, leave out ("110") and insert ("111").
The noble Lord said: My Lords, I owe the House an explanation about this Amendment and I should like to explain how it came to be on the Marshalled List and to ask for the indulgence of your
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Lordships. When those who were responsible for the somewhat different additional Member system Amendments in another place made their calculations, they perforce used the 1977 register figures. Those showed that adding an extra seat for each constituency with over 110 per cent. of the electoral quota to the 71 Scottish Parliamentary seats resulted in 100 constituency Members. Adding the 50 additional Members to be elected under the additional Member system gave a total of 150 members, the same number as the Bill as it came from another place provided. Since that time, the 1978 register figures have become available; I do not know whether they were already available to the Government, but at any rate they became available to those concerned with the Amendments.
On the basis of those figures, 110 per cent. of the electoral quota—which is 59,014 electors—gave 30 extra Members instead of 29. That would mean 101 constituency Members in all. We therefore made revised calculations on the basis of 111 per cent. of the electoral quota with a view to producing, hopefully, a total of 100. Unfortunately, it produced a total of 99. On the whole, it seems preferable to adhere to the 110 per cent. electoral quota rather than having a very complicated formula, the more so as there are two constituencies—Pentlands with 59,384 and Pollock with 59,367—very close together. The result will be 101 constituency Members and 151 Assembly Members in all. After all, there is no magic in the figure of 150 Assembly Members, and in any case one of the Members must be elected the presiding officer, so that will mean 150 effective Members. I do not mean by that that the presiding officer will not be effective; I mean effective as a voting Member.
It might be in accordance with the wishes of the House if I referred at the same time to Amendment No. 18, which revises the table of Members by electoral regions and shows how the figure of 151 is made up. It may be for the convenience of the House to consider this briefly now, although it is virtually a matter of adding one Member to the two columns, the first column showing the constituency Members and the last column the total Members. Obviously I shall wish to withdraw this Amendment so as

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to leave the electoral quota figure at 110 and I am moving it only so as to give the House some idea of what we are about in this matter; I thought it desirable to do that all in one. I beg to move.
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey): My Lords, a short experience in this House has taught me that, while we have many skills, arithmetic does not appear to be numbered among them. However, I can only admire the skill of the noble Lord, Lord Drumalbyn, in making a virtue out of this particular necessity and appointing his extra man as the presiding officer. My only duty is to make it plain that the Government have no objection either to the noble Lord proceeding with the Amendment or not proceeding with it as the mood or his arithmetic takes him. Of course, since the Government have no commitment to the principle underlying that, I have nothing further to add. In relation to Amendment No. 18, we may in due course come to that point. But, in the light of the noble Lord's indication that he does not propose to press this Amendment, Amendment No. 18 will be correct in that the numbers therein correspond to the numbers in the Bill as unamended.
Lord DRUMALBYN: My Lords, in view of the noble and learned Lord's liberal attitude on this occasion, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.18 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 2:
Page 2, line 11, leave out ("ordinary").
The noble Lord said: My Lords, it may be for the convenience of the House to discuss at the same time Amendments Nos. 7, 8, 9, 10, 13, 14, 15, 16, 17 and 192. It has been suggested to me that, in the Bill, an ordinary election is one which takes place under Clause 2 on the third Thursday in March at fixed four-year intervals with the possibility of minor adjustments of two months either way. The term "ordinary election"—the purpose of the Amendment is to leave out the word "ordinary"—is thus not applicable to a mid-term election which takes place on an order of the Secretary
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of State dissolving the Assembly consequent on a resolution of the Assembly itself that it should be dissolved. That is provided for in Clause 3(1)(b). If that is so—and I was in some doubt as to whether it was so—then the word "ordinary" should be omitted in each of the 10 places where it occurs in relation to the election of additional Members. Obviously should there be a mid-term election, then the 50 additional Members should be elected at that election, following the dissolution, in the same way as they will be elected in the regular four-year ordinary elections.
It may also be convenient for the House to consider Amendment No. 192 at the same time. That Amendment seeks to make it absolutely clear that the word "election" covers both ordinary and mid-term elections, but not of course by-elections. If the Government are of the opinion that Amendment No. 192 is not necessary, so much the better. Of course these Amendments are, in effect, purely drafting Amendments. I beg to move.
Lord McCLUSKEY: My Lords, I believe I can say to the noble Lord that his drafting is slightly impure. I should like to ask him to look at line 5 on page 44 of the Bill. I believe that I am right in saying that his Amendment to this line does not identify which particular "ordinary" he wants to delete, but I am sure that if his intention is to delete the first "ordinary" that appears in that line, that could be dealt with when the Bill is printed.
Lord DRUMALBYN: My Lords, I am much obliged to the noble and learned Lord, but I am afraid that I did not catch which line on page 44 he mentioned.
Lord McCLUSKEY: My Lords, with the leave of the House, may I say that it is line 5 on page 44. The Amendment of the noble Lord reads:
"Page 44, line 5, leave out ("ordinary")".
I am sure that the noble Lord means the first "ordinary", because the wording goes on,
"… other than at the first ordinary election …".
Lord DRUMALBYN: My Lords, I am much obliged to the noble and learned Lord, and I hope that it will be possible to proceed in the way that he indicates.

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Otherwise I do not see that there need be any great difficulty of interpretation involved.
On Question, Amendment agreed to.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 3:
Page 2, line 16, leave out ("ordinary").
On Question, Amendment agreed to.
3.23 p.m.
Lord MONSON Lord MONSON moved Amendment No. 4:
Page 2, line 31, at end insert—
("(10) Subject to subsection (11) of this section, in rule 1 in the Second Schedule to the House of Commons (Redistribution of Seats) Act 1949 for the word ("71") there shall be substituted the words ("57 nor greater than 60").
(11) Subsection (10) of this section shall not come into operation until after the first election of members of the Assembly.").
The noble Lord said: My Lords, eight weeks ago, on Budget Day to be absolutely precise, your Lordships, when in Committee, discussed an Amendment in the names of myself and the noble Lords, Lord Harmar - Nicholls, Lord Ellen-borough, and Lord Stratchclyde, which effectively provided that Scottish representation at Westminster should be harmonised with that of England before any election to a Scottish Assembly took place. We also discussed a further Amendment in the names of the noble Lord, Lord Wigg, and the noble Earl, Lord Onslow, that would have required Parliament to decide the number of Parliamentary constituencies in Scotland before, rather than after, the referendum for which the Bill provides.
The general consensus that seemed to emerge in that debate was that Scottish representation should indeed be reduced to English levels, subject to allowance for special geographical conditions. Apart from the noble and learned Lord the Lord Chancellor, the only reservation seemed to be whether this Bill was the right medium for such a change. The mood of those who were somewhat sceptical about accepting the Amendments was expressed by the noble Lord, Lord Brown, in referring to the support then given to the principle of our Amendment by the noble Earl, Lord Ferrers. Lord Brown spoke as follows:
"While the noble Earl"—
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that is to say, Lord Ferrers—
"is spending quite a lot of time putting forward arguments to the effect that the Scottish representation is too large, I doubt whether anybody in this Committee is in disagreement with him over that. The only question which arises is whether or not the matter should be dealt with in this Bill."—[Official Report, 11/4/78; col. 515.]
In withdrawing our Amendment then it was made quite clear that this question would be returned to on Report, when our redrafting would fully have taken into account the helpful suggestions made by certain Scottish noble Lords (particularly those on the Conservative Benches) about the need to cater for a few exceptionally thinly populated Highland constituencies, and also taking into account other objections raised in Committee, particularly Government ones. For instance, we have taken note of the objection raised by the noble and learned Lord the Lord Chancellor that our Amendment as then drafted would have delayed the first election to the Scottish Assembly, and the way that it has been redrafted obviates that delay.
However, rather surprisingly, the Opposition Front Bench stole a march on the Committee by proposing, a month later, a new clause providing for a Speaker's Conference, which was broadly similar to those Amendments which had been decisively rejected by another place. Despite a rather marked lack of enthusiasm from most parts of the Chamber, the new clause was in the end approved, albeit by a small majority.
Now there are three main reasons why it is essential to return at this stage of the Bill to the question of Scottish representation at Westminster. First, the new clause on a Speaker's Conference suffers from so many defects and inadequacies that some further provision is required, either as an alternative, or to supplement and strengthen the Speaker's Conference clause. Secondly, the Committee passed the clause under an important, but totally mistaken, belief as to the motives of another place for having rejected a Speaker's Conference Amendment. Thirdly, some Members of the Committee may well have been influenced by the speech of the noble and learned Lord, Lord McCluskey, which was quite extraordinarily misleading and inaccurate as to the history of, and the raison d'etre for, the present Scottish over-representation, as I

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shall explain in a moment. I must apologise in advance for what may be a somewhat lengthy speech, but this Amendment is so important that it is vital to set the record straight, so that no one is under delusions when it comes to the vote.
First, I must explain the wording of the Amendment before us. Scottish representation is fixed by the House of Commons (Redistribution of Seats) Act 1949 at "not less than 71". This Amendment will change it to not less than 57, nor greater than 60. Fifty-seven is the number which would provide equal representation with England, and, very significantly, it is the number recommended by the Kilbrandon Commission, subject to allowance for special geographical conditions. This is why the leeway of up to 60 is suggested—to cater for the sparsely populated areas in the Highlands. Incidentally, the figure of 60 would leave Scottish constituencies with an average electorate 5 per cent. smaller than the average English electorate.
The Amendment to our Amendment, in the names of the noble Lords, Lord Harmar-Nicholls and Lord Ellenborough, would allow a maximum of 63, which figure would mean that Scotland would still be over-represented by as much as 10 per cent. compared with England. I think that this is unjustifiably high, but I appreciate that many noble Lords who live in Scotland, and who are in a far better position than I to speak about the special difficulties of remote constituencies, may be able to convince me otherwise. I shall be interested to hear what they have to say.
I also think that the Amendment as it stands would he more suitable if the Speaker's Conference clause were to be deleted at one stage or another (whether in this House, or in another place) and the choice of the number of constituencies was left to the Boundary Commission. After all, it is a function of a Boundary Commission to work within the fairly concise parameters laid down by Parliament; whereas, if the Speaker's Conference clause remains in the Bill, perhaps the Amendment of the noble Lord, Lord Harmar-Nicholls, would be more suitable, as it would give the Speaker's Conference a greater range of options from which to choose.
The timing of the proposed boundary changes would operate as follows. The Boundary Commission is under a statutory obligation to submit its next report to the Secretary of State no earlier than June 1979, and no later than June 1984. If past form is anything to go by, it will be much nearer the later date. The Amendment cannot come into operation until after the first Assembly election, which is likely to be towards the end of this year, assuming that the Bill goes through. So the Boundary Commission for Scotland would probably have a good four years to do the necessary work. However, if there were some unforeseen problem, the Secretary of State can always fall back on Clause 81 which empowers him to bring different provisions of the Act into operation on different days.
If the Speaker's Conference clause remains in the Bill, then the Conference will choose a figure from within the range permitted by whichever Amendment is finally chosen. If the clause is deleted, then the Boundary Commission will decide the figure—just as it does now—subject to the approval of Parliament. In fact, in the only previous Statute which set up devolved government within the United Kingdom—namely, the Government of Ireland Act 1920—Northern Irish representation was reduced to 12, and the figure was simply inserted into the Act without any Speaker's Conference, but of course there is no need to follow precedent too strictly. It is possible to argue that our Amendment should come later in the Bill, rather than in Clause 1, but this is a matter which can always be rectified at a later stage.
Next, it is necessary to emphasise why the clause on the Speaker's Conference, even if it were to get through another place unscathed, is so utterly inadequate. Its main defect is that it does not get convened until after the Assembly has been set up. This runs directly contrary to what the noble and learned Lord, Lord Hailsham, emphasised in Committee:
"They"—
that is, those who are going to vote in the referendum—
must know what they are buying. They must know whether they are buying over-representation plus an Assembly, or an Assembly without over-representation".—[Official Report, 11/4/78; col. 538.]

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People really must know how their representation is going to be affected before rather than after the referendum. Parliament would be committing a fraud on the people of Scotland—selling them a pig in a poke—if it fails to make the necessary consequences explicitly and abundantly clear. Some people, after all, may legitimately prefer over-representation to devolution; and those people have a right to know the options in advance so that they can vote "No" accordingly; just as they are entitled to decide that the near certainty that an Assembly would have to have tax-raising powers in order to function effectively is too heavy a price to pay for the supposed benefits of devolution.
The House of Commons has never directly debated the question of representation in any of the three devolution Bills—it has always been hidden under discussion on Speaker's Conferences—and it has never had a chance to vote on it. Therefore, if this Amendment were passed in this House we should not be "lecturing another place on what it should be doing"—I trust we shall hear no more of this; we should be giving it a chance, in fact the only chance it will have, of expressing its opinion on representation, and I hope that even those very few noble Lords who favour continued over-representation will join us in giving another place this valuable opportunity.
But the question of the timing of the Speaker's Conference is only one part of the story. The essence of a Speaker's Conference is unanimity, or near unanimity. It is supposed to reflect an agreed constitutional consensus, and where the Party bosses are in agreement this is exactly what happens as the membership of a Speaker's Conference is chosen with considerable care by those with the power of appointment and patronage. In this context it may be interesting to quote what Mr. Bernard Levin has to say in The Times this morning. He praises genuinely independent inquiries in contrast to what he describes as the fraudulent kind, their 'composition rigged by the Party leaders to get a predetermined result, such as a Speaker's Conference.
Because the official Labour Party line is to say that over-representation will remain unchanged one can be sure that
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a Speaker's Conference on Scottish representation would be totally futile and counter productive unless it were supplemented, or better still replaced, by this Amendment. That is why Mr. Tam Dalyell, echoing the sentiments of many other MPs in the Commons debate, remarked that a Speaker's Conference might as usefully spend the time of busy people searching for a crock of gold under the rainbow. It is surely right in any case that major constitutional changes should be argued out on the Floor of the House rather than packed off to a Speaker's Conference for some cosy consensus to be imposed subsequently on quite possibly reluctant Back-Benchers. Nor is it the case, as the noble Lord, Lord Campbell of Croy, mistakenly suggested on 16th May, that the Lords' Speaker's Conference Amendment differs from those already rejected by the Commons in that the Commons Amendments would have delayed the setting up of the Assembly. This is not in fact the case as closer scrutiny of the Commons Amendments and the ensuing debates will demonstrate.
I hope that the Liberals will support this Amendment. The Liberals unreservedly favour the Kilbrandon proposals—that is to say, a reduction to 57 in the number of Scottish seats. There was nothing to stop the Liberals from introducing a Bill to implement the Kilbrandon proposals earlier this Session when plenty of Parliamentary time was available, at least in your Lordships' House, but no doubt they had other things on their minds then. However, this Amendment will give them the opportunity to get what they want very much sooner than they would otherwise get it.
It may be pertinent to observe that West Country constituencies in England are very much under-represented compared with similar types of constituencies in Scotland, particularly in and around the Scottish Border. I suggest that they have as many disadvantages—for instance, it takes as long, if not longer, to get to Cornwall by train as it does to the Scottish Border. I wonder what the electors of North Cornwall. North Devon and Truro would think if they read that the Party who represents them in Parliament had voted against giving them parity with Liberal-held constituencies in Scotland.
One other point must be made in view of the assertion by the noble and learned Lord the Lord Chancellor in column 517 on 11th April, that an Amendment to provide parity would result in ill will, with very serious consequences. No less a newspaper than the Scotsman wrote in a leading article on 20th April—
"Scotland's over-representation is to be maintained because it suits Labour's electoral advantage. That cannot be justified, though parity for votes in Scotland and England would be perfectly acceptable".
Note, my Lords, the words "perfectly acceptable". Of course it would be acceptable. It would be fair, and would be seen to be fair. It is also relevant that the political correspondent of the Glasgow Herald wrote somewhat later an article entitled "Scots voice at Westminster may be muted", and this was expressed without any breath of criticism.
There is one final point to be answered, as it is the most dangerous and the most inaccurate of all the charges made against the principle behind the Amendment. This is the no doubt inadvertent myth propagated by the noble and learned Lord, Lord McCluskey, when he said:
"I must emphasise that what Members of this Committee must fully appreciate is that the Treaty of Union wrote in over-representation for Scotland ".—[Official Report, 16/5/78; col. 195.]
He continued by saying—and this is the dangerously misleading part:
"Those who are now saying that we should come to population parity or something of that kind are really saying that we should re-write the Treaty of Union. If that is not a recipe for breaking up the United Kingdom, I do not know what is … I wonder whether I am in some kind of asylum ".—(col. 195.)
The facts should be recorded punctiliously and dispassionately. They were set out by the noble Lord, Lord Strathclyde, on 11th April in Committee and the noble and learned Lord the Lord Chancellor did not attempt in any way to repudiate them. The fact is that under the Treaty of Union Scotland had only 52 per cent. to 53 per cent. of the representation to which she was numerically entitled. As Professor George Pryde, senior lecturer in Scottish history at Glasgow University wrote in his book, The Treaty of Union—
"England, generous in financial and economic matters, was niggardly as regards Scottish participation in the Parliament of Great Britain; and Scotland was therefore condemned to 175 years of under-representation at Westminster".
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He goes on to point out that the 1832 Reform Bill still meant that Scotland was under-represented by about one-third. The 1867 Act left Scotland under-represented by about 12 per cent. Only in 1885 was justice to all parts of the United Kingdom finally done and parity established. That is surely the criterion we should be aiming at. Since 1885 the pendulum of "unfairness", if you like to describe it that way, has swung in the opposite direction. The 1918 Act was not perhaps excessively unfair from the English point of view, with Scotland only very slightly over-represented, although Wales was more so. Not until as late as 1949 was the glaring inequity that we have today enacted under Mr. Attlee's Administration—even here, I suspect, more by accident than by design. So, far from dating back over 270 years, institutionalised over-representation for Scotland is an aberration less than 30 years old.
The wording of this Amendment may seem slightly complex to those noble Lords who have not had time to glance at the 1949 Act, but the issue is a perfectly straightforward one. It is a simple question of fairness and justice. Those noble Lords who believe in justice for all the people of the United Kingdom, and not merely a small but politically significant segment, will be voting for this Amendment. I beg to move.
3.39 p.m.
Lord HARMAR-NICHOLLS Lord HARMAR-NICHOLLS moved, as an Amendment to the Amendment, Amendment No. 5:
In last line of subsection (10), leave out ("60") and insert ("63").
The noble Lord said: I beg to move the Amendment standing in my name and that of my noble friend. I hasten to assure my noble friend Lord Monson that this Amendment, a very minor Amendment to his main submission, is in no way a criticism of his Amendment. I feel that, because of the surrounding circumstances of this Bill as outlined and presented, a show of generosity even beyond the point of rigid fairness may pay dividends. Noble Lords may notice that the noble Lord, Lord Monson, has said that instructions would be given to a Speaker's Conference that they would have to amend, within the range of reducing the 71 seats in Scotland to between 57 and 60; therefore they would have a

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margin of three to play with in terms of Parliamentary instruction. My Amendment provides for between 57 and 63, giving a margin of six seats in order to face the possible charges of prejudice, if the net result of their deliberations, which I am certain it would be—I mean the deliberations of a Speaker's Conference—meant that there had to be a reduction in the number of Parliamentary seats.
This is not a technical Amendment, and the point put by the noble Lord, Lord Monson, from the Cross-Benches is not a technical point. There is a vital principle behind it; and, in dealing with the unfairness that is within that principle, timing is going to be of the essence. It is accepted on all sides, except in the Labour Party—the Conservative Party; the Liberals, through the mouth of their Leader; the Scot-Nats and the Kilbrandon Report have all said it; some Members of the Labour Party, not from any prejudice but as a fact—that in terms of population, in terms of representation from Scotland to the Westminster Parliament, when they send 71 Members they have more in proportion than England or any other part of the United Kingdom. It is perfectly clear that, however it came about, whatever reason started it, the position is that Scotland is over-represented as compared with the rest of the United Kingdom.
I believe that, if it had not been for this devolution Bill, that would have gone on without question, and I doubt whether much would have been done about it. But this devolution Bill creates a completely different atmosphere, because the devolution Bill is giving full powers to a Scottish Assembly to do things in housing, education and other areas of that sort, over which the English Parliament will have no control, and yet it will still leave Scottish Members—over-represented, as has been generally accepted—to cast their vote and to bring their influence to bear on matters to do with housing, education and such things in England. That cannot be right; and if it is that one realises that this devolution Bill does bring about such a change of circumstance, I would think that common sense would have indicated that that was the time for Scotland to make a gesture, at any rate, to the rest of the United Kingdom and to say that, in return for the special, new powers given
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to Scotland to deal with their own affairs, they, in return, were prepared to make a gesture to show that they did not want to go on using their influence over English affairs in an over-represented way.
I would think that they would have wanted to make that as an offer, much less having it argued in debate and, I hope, voted on (and I hope voted on with some success) later. I would have thought that the Government spokesman would have seen that point and that it would have caused him to make such a gesture. It could only have helped him in the task of getting through a Bill which is a pretty rough, tough and inadequate one, if not a dangerous one; but to want the penny and the cake, and to completely disregard any possible reactions which may come from any other part of the United Kingdom, is insensitive and wrong. Their appetite for wanting the Scottish Labour votes in the House of Commons must be a very strong one if it causes them to overlook the absolute fairness of what I am saying. So I believe that we ought to look at this and mean to do something about it, and hope that the other place will see the same merit and will confirm whatever it is that we do.
We are at the Report stage on this Bill, and the sort of arguments which the noble Lord, Lord Monson, has put forward and the ones which I am putting forward now are arguments which were put forward at some length and in some detail at the Committee stage. We made it perfectly clear that we did not want to push it to a vote at Committee stage because we wanted to see the sort of answers we got both from the Government Front Bench and from Government supporters, to see whether this obvious unfairness which we could see had some answer to it. The only answer we had from the Minister in order to justify continuing what is, according to the Kilbrandon Report, an unfairness was given under two headings. First we had the historical answer from the noble and learned Lord, Lord McCluskey, which I shall deal with in a minute—it has no basis whatsoever, is not relevant and is the sort of argument I would expect somebody to use when they have no other argument but have to say something—and then there was the other, very peculiar argument, which I found rather distasteful. The other argument was that even if it is unfair, even if they are

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over-represented, even if they have these special powers in Scotland; it would cause moderates in Scotland to become extremist if you did anything about it. I thought that was quite a distasteful argument: that you must not do what is right because it may cause somebody who is reasonably moderate now to become immoderate out of spite.
Those were the only two arguments that we had in Committee, and I believe the first of them can be completely discounted. Let me deal with it now. The noble Lord, Lord Monson, quoted what the noble and learned Lord, Lord McCluskey, said about it being part of the deal which took place under the Act of Union. It was nothing of the sort. The historical answer has no real argument to support it. The reason why the over-representation of Scotland has taken place—and it was inadvertent; nobody did it deliberately—is the simple, historical one that Scotland's population has not grown at the same rate as England's population. Under the Act of Union to which the noble and learned Lord referred, there was no deal such as, "We give you this extra number of seats in order to justify the Act of Union". It was not a deal: it was a decision properly arrived at. Whether it was right or wrong, I do not know, but that was the basis of it then; and the reason why it has now gone out of proportion is that the population in Scotland has not grown as much as the population in England.
There were two ways to deal with that situation. The first was to reduce the representation from Scotland and the second was to increase the representation from England. But if you increase the representation from England, with the eight or ten seats that that would require, then it would interfere even with the seating arrangements in another place and make Parliament that much bigger and un-wieldy. But the fact that this has not come about has nothing whatever to do with a "bargain" which would be broken if we altered it now, so I do not think that that explanation ought to be taken into account; it really has no base. As to the second one, about the fear of making moderates immoderate, I find that so unpleasant, as I said, that I would hope that your Lordships would discount that, too. I do not believe that merit, fairness and logic—confirmed by the Kilbrandon Report, which went into the matter im-
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partially and in great detail—should be ignored in order to give priority to mere political expediency; and I believe that now is the time to avoid future conflict by letting it be seen (if it is that this Bill eventually becomes an Act) that Scotland, in return for the extra powers which they are getting under the devolution Bill, recognise this unfairness and are using the time at which they receive their advantage as an occasion to go some way, at any rate—and under my Amendment they are going only some way—to rectify that unfairness.
Now the Government have tried to meet that by Clause 64, if it remains in the Bill, which your Lordships may read, where it is provided that there will be a Speaker's Conference that will look at this matter some time after the first Assembly has met. The reason why I do not think your Lordships can leave that standing without the added support of the Amendment to which I am now speaking is this. If we did it that way, we would be cheating the people of Scotland, because this Bill will not become an Act (at least, I presume it will not) until after we have had the referendum—although I have never had any clear understanding from any Government speeches that if the referendum goes against it they will not try to introduce this sort of Act in another way; but we will work on the basis that everybody would play fair. They have got to have a referendum to decide whether or not this will become the law and whether devolution will take place.
If it is, and it ought to be, that there is going to be less representation in the House of Commons from Scotland as part of the deal for getting devolution, then the people ought to know that before they vote in the referendum. They ought to know that because if one waits until the first Assembly has been called, 12 months after that, and then their membership in the House of Commons has to be reduced, they will be entitled to feel that they have been cheated; because I would suggest that there would be many people in Scotland who, if they have to choose between the supposed extra powers given under the devolution Bill and the authority and powers that they have through their representation in the House of Commons, would prefer the House of Commons' representation to that under the devolution Bill. I have no doubt about that.
If that is to be the outcome, then, before we get to the stage of a referendum, the people of Scotland ought to know that. I believe that it is essential that we give another place a chance of looking at this Bill with that point very much in mind. That is why I hope that your Lordships will think it worthwhile going into the Lobby if the Government Front Bench indicate that they are not prepared to accept this Amendment, or something like it, in order that we can have the position made perfectly clear.
To reiterate the point, we know that the average size of an English constituency is 66,000, and we know that 11 of the 71 Scottish seats have electorates of fewer than 40,000. That is a discrepency that cannot be allowed to remain. There ought to be some discrepancy, of course—one can accept that—to take account of the vast areas that have to be covered because of the lower population; and there has to be, in numerical terms, some apparent disparity in representation, but the disparity which exists at the present time is much too great. This is the danger that I should like the noble and learned Lord, Lord McCluskey, to keep in mind. I have found him very fair in presenting all the points as written into the Bill; but I have found him a little out of touch. Perhaps that is because he is not a politician, perhaps because, unlike some of us, he has not had to fight elections to get to Parliament. He has not had the chance to realise how strongly people feel about using their votes.
I should like to assure the noble and learned Lord—and this is based on nearly 30 years' experience in another place, having gone through 10 or 12 General Elections, and, including local government, 18 elections—that when the time arrives (as it will; and I guarantee the time has got to arrive) where some vital matter of principle is going to alter the law of the land, or even alter the constitution of this country, and if you get the situation (as you will; it must happen) where the English majority want to do something different from what the over-represented Scottish representatives decide by their votes to do, then, at the minute that that time arrives, you will have this explosion that I have referred to from time to time.
I believe that it will be dangerous and may be dirty; but I think it will be dirtier than it need be if we cannot say that in the time of passing this Bill we recognised this danger and that Scotland made some contribution in advance to try to deal with it. If we could say that in the acceptance of the Bill which gave them extra powers for devolution, Scotland, quite willingly at the behest of the Government, agreed to their representation being reduced from the present 71 down to 63 or 60, or whatever the Speaker's Conference may decide, then I believe—and I say that my instinct on this is based on a reasonable experience in these matters—it can, to some extent, mitigate the extent and depth of the danger that will come. It is as certain as night follows day that there will be issues in the future, as there have been issues in the past, where the vote from Scotland and Wales has overborne the vote from England. As long as we are a United Kingdom, it is right that that should happen; for we are all part of one. But if by this devolution Bill, it is made that we are not one, that there is separation to some extent—and this a separation which is only the beginning—then this brings to light all these feelings of being wrongly dealt with that would not othewise exist.
In anticipation of that situation, if we are to have this Bill at all—and I hope that we will not have it in this form; I hope that something will happen whereby we will be able to get together and produce something infinitely better and less dangerous and more trustworthy—and if by the vote of this minority Government, a Government which represents only 28 per cent. of the electorate, this Bill becomes an Act, at any rate let us make it so as to defuse, to some extent, some of the terrific emotions and dangers that will flow on that very day when you get Scottish votes interfering with what the majority of people in England think they want.
I do not believe that these are loose words or immoderate words. Let us look at the history of what has happened in this country since 1945, where we have seen our way of life, the economy and the general way of living completely altered, very much against the wishes of the English Members of Parliament, very much against all these major issues which

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have altered our way of life! If it had been left to the English representatives in the elected Chamber along the corridor, these things would not have happened in that form. They have happened only because of the Labour Party votes which have been produced from Scotland and from Wales. The English have accepted this, and rightly so; for they are part of the United Kingdom, we are part of the one; while in this Bill they are being made not part of the one.
Unless some gesture is made in order to recognise that, then I forecast, with no joy, that in the not too very distant future we shall be giving future generations some trouble and upset that we would not wish to put upon our children. I am merely supplementing the arguments put forward by the noble Lord, Lord Monson. My Amendment is slightly more generous than his. I am saying that I recognise the possibility of altering it downward. Let us make it that we give them six seats extra to what they are really entitled to have in order to show that there is no bias and no prejudice on the part of those who put forward these arguments.
May I address a word to my noble friends on the Opposition Front Bench? I have gathered that there is just a possibility that they may not be as enthusiastic as I am about asking your Lordships to go into the Lobby in support of this Amendment. If that is true—and I hope that what I am saying may be untrueߞI would hope that they would give some guidance on these matters. It has been hinted to me that the reason that they would take that line at this stage is because they feel that this House ought not to interfere with what is essentially a House of Commons matter. But if your Lordships carry that logically to its conclusion, your Lordships will never do anything. If you carry that to its logical conclusion, your Lordships are recognising and satisfying yourselves that this House is just a consultative Chamber. We are part of Parliament. We have given more time to these discussions than, because of the guillotine, they have given in the other place. We have a duty to give them some guidance or some suggestions. We do it in the knowledge that they still have the power to turn it down if, for any reason, they do not want it. But to denigrate your Lordships' own powers in advance,
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and to say that because somebody may feel that you are treading on their territory you therefore ought not to do what you honestly think is right to do, is not, I think, the right way of conducting your Lordships' affairs. If that is so, then we arc recognising in advance that we are not part of Parliament.
So I urge your Lordships to take into account what the noble Lord, Lord Monson, said and recognise the extra generosity which my Amendment gives to his Amendment. It could well be that the noble Lord, Lord Monson, will accept my Amendment in place of his own figures in order to do this and I hope that, because of the future date and because of the existing fairness and logic in the argument which has been presented, your Lordships will—whether you receive guidance from any Front Benches at all—make your own decision and go into the Lobbies. Let us put this on the record and leave the House of Commons to produce better arguments to upset it if it eventually thinks fit to do so.
4 p.m.
Lord STRATHCLYDE: My Lords, we have listened to two English voices speaking for fair play as they see it. Perhaps I may be permitted to say one word and say it as a Scotsman. It is that I do not believe that my fellow-countrymen want to have any unfair advantage over those who are our fellow-citizens and who come from England. I do not believe for one moment that they want it and therefore I shall certainly support this Amendment, believing it to be the wish of my fellow countrymen to have fair play all round.
The Earl of ONSLOW: My Lords, I put my name to this Amendment because it seemed to me an Amendment which stretched across all spectrums in your Lordships' House. I speak now in a way which is possibly dishonourable. I do it in this way because I am a Member of your Lordships' House—which is something of which I am inordinately proud—and I speak as a United Kingdom Peer. But this Bill is forcing me and several others to speak as English Peers or Englishmen. That is something which makes me infinitely sad and infinitely depressed.
I have re-read all the speeches in the two previous debates upon this subject.

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There has been no understanding on the part either of the noble and learned Lord the Lord Chancellor or of the favourite up-and-coming politician of the Economist, the noble and learned Lord, Lord McCluskey. I am not being patronising or untruthful; I think one can say generously that he has mastered his brief, even though we do not agree with him. Neither of these Peers has realised the force of the possible English backlash and its consequent bad effect upon Scotland. The Conservatives have recognised that a problem exists. This is a major advantage; this is a major advance over their opponents. They will not follow it logically, they will not follow it to its conclusion and recognise that we must therefore say to the Scots, "If you are going to have the privilege of devolution, you cannot then have the privilege of over-representation". Privilege and responsibility go together: the one is the handmaiden of the other. Privilege should not go with privilege, and responsibility does not go with responsibility. They are both inter-connected.
The arguments that the House of Lords should not lecture the House of Commons on its composition seem to be based on an attitude of mind verging on servility. The House of Commons never ceases to lecture the House of Lords and the public surrounding it on the total illogicality of our House's composition. That composition is illogical. I would not hesitate to pretend that many of us have any popular backing for what we say or do except that we do it—and I believe the words are on the Writ of Summons—"On our own honour". But your Lordships' House is full of men of distinction; men of intellectual ability; men of honour and of wisdom; men from all parts of the community; and men from most backgrounds in society.
These men have their public duty. We have our public duty, my Lords. If that public duty consists of saying to the place down the corridor, "You are making a mistake," and pointing out that the Party machines are over-represented down the corridor—for we are perhaps free of some of those ties of the Party machine—then we should say that legislation, especially constitutional legislation, is being passed which may be more to the advantage of the Party machine than it is
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to the advantage of the general public. In other words, I think we should be ultra-careful and try to use the pro bono publico argument.
It seems to me that the diminution of the Scots representation has been dealt with quite beautifully by the noble Lord, Lord Monson. He has done so with a piece of intellectual and logical thought which I would hesitate even to attempt. Noble Lords opposite may not be influenced by intellectual, logical and sensible speeches. Perhaps they will be influenced by passion. Sometimes I may be a little too passionate. Sometimes I may say things slightly more strongly than is customary in your Lordships' House. I am trying hard to be restrained and mild, but I can promise you, my Lords, that the passion is there.
I love the United Kingdom; it is the greatest country in which one can possibly live. Anybody who messes it about and puts that Union in danger should bear anathema on his head from generation unto generation. If Scotland is over-represented, and Scotland does have this extra privilege over the English, then the Union will be in danger and the English will react. The benefit which we have all gained from the Union will be at risk. That is something which is too special and too good to be put at risk. One way to take away the danger of putting that Union at risk is to make sure that the obvious unfairness, injustice and illogicality of Scots over-representation is removed.
The Speaker's Conference argument was put forward at an earlier stage. All I would respectfully suggest to your Lordships is that this Amendment or the Amendment of the noble Lord, Lord Harmar-Nicholls—if that is accepted—reinforces the Speaker's Conference argument. I hope that your Lordships will follow the extraordinary grouping of the noble Lord, Lord Monson, myself, the noble Lord, Lord Wigg, and the noble and learned Lord, Lord Wilson of Langside, into the Lobby this afternoon.
4.9 p.m.
Lord WIGG: My Lords, may I express my apologies for not being present for the whole of the debate—
Several noble Lords: The Derby!
Lord WIGG: Precisely, my Lords! Having reduced a certain event at Epsom down to three possible happenings, I am glad to say that I was right and I backed the winner. I am quite sure, my Lords, that you would like me on your behalf to express our congratulations to another Member of this noble House—the noble Earl, Lord Halifax—on having had the good fortune to own the winner of the Derby. I certainly congratulate him, not only from my heart but, more substantially, from my pocket.
On 11th April, during the Committee stage of this Bill, I invited your Lordships to support an Amendment that I had placed on the Marshalled List and which had some support, at least to the extent of its being suggested that I should withdraw it and return to the subject at Report stage. The Amendments which are in the names of the noble Lords, Lord Monson and Lord Harmar-Nicholls, have my support for general political reasons. During the debate on 11th April, we had the arguments against what we wanted to do: that is to say, that if devolution was to go through then in fact the question of Scottish representation must be looked at again and certainly would be looked at again on a continuing basis. As I expressed it: Jack is out of the box and Jack will not go back into the box again now, knowing what the facts and figures of the situation are.
The noble and learned Lord, Lord McCluskey, when he came to reply, said at one stage that he did not know whether or not he was in a madhouse—quite clearly he must at some time have been in one to be worried about the possible alternative. I have not shared that experience but I must confess that, having read his speech and having listened to the noble and learned Lord the Lord Chancellor, I wondered whether somebody should not be in a madhouse and I felt that it would not be me, because the noble and learned Lord, Lord McCluskey, argued that within the Act of Union it was implicit that there would be, apparently for all time, Scottish over-representation. In fact, as I understood it, one of the major causes of the '45 was, according to the noble and learned Lord's reading of history that the Scots did not have sufficient representation.
When the noble and learned Lord the Lord Chancellor came to deal with the
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matter, he put forward the argument—and it is one with which I substantially agree—that it is a matter of the sovereignty of Parliament. If the noble and learned Lord, Lord McCluskey will look at col. 519 of Hansard for 11th April, he will find that the noble and learned Lord the Lord Chancellor said:
"what Parliament has given Parliament will be able to take away …".
I am sure that the doctrine as expressed in those terms is absolutely right, because what an earlier Parliament has given another Parliament can subsequently take away. That is to say, no Parliament can legislate for all time. Whatever view any Member of your Lordships' House may take of this problem, no-one can deny that, accepting the formula of equality of representation, or, as I would put it, the desirability of "one vote, one value", the Scots have had more than their share. If therefore we propose to redistribute power—and that is what the devolution Bill is about—within the United Kingdom, then quite clearly all the factors that make up the expression of power must and will be taken into account.
I am not opposed to devolution per se; I am not opposed to centralisation, or whatever you like to call it; but my view of history—a much more simple one than that of those who have had the great advantage of going to the classical universities—is that what has made Britain "tick" down the ages has been the unity of the British people. Anyone who puts on the anvil the integrity of the United Kingdom is, in my judgment, going very near to treason, at least at the bar of history. This is my objection to the Common Market: it takes away from the unity of the British people and passes it off to a bureaucracy in Brussels. It may be a much better system of government. It may be much more efficient, but if we do that and if the consequences have to be reaped by people who have not been thoroughly educated in the functioning of power, then we are laying up immeasurable stores of trouble for ourselves.
I will not be a party—I refuse to be a party—to supporting the concept of the Community, and I refuse to support this Bill, whatever the consequences may be. I believe it to be utterly wrong in principle but, my Lords, democracy has its say and if in fact it is to be placed on the Statute

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Book I should be failing in my duty if I did not lend my voice, for what it may add up to, to point out that you may do this but that as men sow so shall they reap, and you are going to place strains and stresses upon the unity of the British people which may arouse something which has not been aroused since the 17th century, namely, English nationalism.
If the English people have to pay the bill for an irresponsible political Act, devised only for the convenience—and, in my view, the transient convenience, rather than the long-term advantage, because I do not believe there is a long-term advantage—of the Labour Party, and if the Labour Party introduces a devolution Bill because it is afraid of the growth of Scottish nationalism and its political consequences, then in my judgment that must call into question the representation here. Alternatively, to put it in another way, it calls into question the redistribution of power which must inevitably follow as surely as night follows day as a consequence of the passing of this Act. Therefore, I believe that all Members of this House who hold views somewhat similar to mine and believe that above all the integrity of the United Kingdom must be maintained, will support in principle the Amendments on the Marshalled List. I will certainly go into the Lobby to support them.
Lord WILSON of LANGSIDE: My Lords, I should like to add a further Scottish voice to the support of these Amendments. I shall be as brief as was the last Scottish voice—that of the noble Lord, Lord Strathclyde—which I am very happy to join, because the arguments have surely been fully deployed in all their persuasiveness. I would say only this: that I think the House is in debt to the noble Lord, Lord Monson, for raising this matter in these Amendments. He apologised for making a long speech but I think your Lordships would agree with me that there was no need for that apology and that we are indeed in debt to the noble Lord for raising this matter and presenting it in the way he did.
4.18 p.m.
Lord ELLENBOROUGH: My Lords, as one of the six who have put their names down in support of these two Amendments, perhaps I might be allowed to
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say a few words. The two Amendments are very similar in character. It is really just a matter of degree, but an important degree. The Amendment in the name of my noble friend Lord Harmar-Nicholls and myself I think is rather more flexible and takes more account of the large rural areas in the North of Scotland, and so on. But one thing is clear, and that is that the question of Scottish representation at Westminster has to be faced fair and square once a Scottish Assembly has been set up. I would say it is absolutely vital that the price tag attached to devolution should be shown in the shop window before the referendum, so that the Scottish electorate know what they are voting for, and that if devolution is to go through it must inevitably entail a reduction in representation at Westminster. Otherwise, as I said on a previous occasion, it seems to me that the prospectus will be a fraudulent one, and realisation on the part of the electorate only after a referendum could cause great resentment.
With respect to my own Front Bench, I believe that the plans for a Speaker's Conference are really far too nebulous and simply will not put the issue with sufficient clarity to the electors. It really is no good the Government huffing and puffing about the Act of Union setting out in some sacrosanct way the terms of Scottish over-representation over the years. Several noble Lords have done their homework on this. I think the noble Lord, Lord Monson, quoted from Professor Pryde; I should just like to repeat what the Professor said in his book on the history of Scotland from 1603 to the present day in relation to the 1984–85 reform:
"Since the reallocation of seats was strictly based on the distribution of population, Scotland, with an increased quota of 72 members out of 670, was at last justly represented".
So it is simply not so that Scotland has been over-represented since the Act of Union.
The important point is that it is the Government who are changing the status quo and, for the first time since the Act of Union, the whole position will be different. Scotland will have its own Assembly with far-reaching powers. There will be new constitutional innovations, ill-thought out, fraught with dangers to the Union, and there is bound to be immediate resentment when, after the

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Assembly has been set up, Scottish Members are seen to be voting upon and determining issues affecting England. My noble friend Lord Harmar-Nicholls has mentioned all this far more eloquently than I can. But it is manifestly unfair and cannot be sustained, because the dynamics of politics are such that this situation will not be acceptable to any Party. It will not be acceptable to the Conservative Party, and the fact that, if it were acceptable, it would benefit the Labour Party does not mean that it could be sustained for more than a short time. The whole thing reeks of political expediency.
I note that later in the Report stage there is an Amendment, No. 176, on the question of voting by Scottish Members of Parliament. This is a very ingenious Amendment and I think that it will have my support. But it seems to me very doubtful, to say the least, that the British genius for compromise and muddling-through will work by means of a complicated formula, so that Scottish Members of Parliament vote on English legislation the first time round but not, as it were, on the replay. I should have thought that, in these days of very tight Parliamentary majorities and three-line Whips, this would present enormous difficulties.
Devolution will work only if it is seen to be fair, and I feel most strongly that the Government are behaving in a shameful and cynical manner in refusing to face up to this issue and denying that there is any problem at all. After all, what Members of the Government are now saying is just not what they were saying a few years ago. In a speech last January, the honourable Member for Liverpool, Walton, Mr. Heller—if I may dare mention him in your Lordships' House—quoted what had been said some two or three years ago by the Minister of State at the Privy Council Office at a special conference of the Labour Party in Scotland, when the National Executive insisted that devolution should be part of the Labour Party's Manifesto. The Minister, Mr. Smith, has piloted a large part of the devolution Bill through another place.
What he apparently said—and Mr. Heller invited him to get up and say whether there was any incorrect reporting—was that,
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"members of the Party who were pressing for devolution through a Scottish Government, without loss of the Office of Secretary of State and a reduction in the number of Scottish MPs at Westminster, were being dishonest. A priority for the Party was to retain the Secretary of State and the 71 MPs, but he expressed doubts about how this could be achieved if there were a Scottish Government".
As the honourable Member for Liverpool, Walton, went on, he felt that while the Minister was certainly entitled to change his mind, he might at the very least be prepared to explain why he had changed his mind and, perhaps, he had a duty and a responsibility to explain his reasons.
There is no doubt that opinion is changing in the right direction in regard to this matter. There have been realistic articles in the Scotsman and the Glasgow Herald which recognise the inevitability of reduced representation. I was very moved by the short intervention of my noble friend Lord Strathclyde a moment ago. In the debate on 16th May, the noble and learned Lord, Lord McCluskey, waxed most eloquent, and indeed was rather indignant, because in his view the English had no right to complain as they had hundreds of seats, as he put it, in a Parliament of 635 Members. Of course they have hundreds of seats, as the English electorate consists of no fewer than 83 per cent. of the United Kingdom. In fact, the English have 516 seats and, as was illustrated very clearly by the written reply to the Question of the noble Lord, Lord Vaizey, the other day, England is very much under-represented. If the average number of electors in constituencies in England and Scotland was the same, then England would have 639 seats, so that at present it has 123 too few.
I am glad to see the noble Lord, Lord Wells-Pestell, present. He is a very highly respected Member of this House and the Government. He may have had a premonition that I would mention an Answer which he gave to a Question a year or so ago. I believe that this was on 3rd March last year, and the Question concerned the number of seats in the four parts of the United Kingdom. The noble Lord, Lord Wells-Pestell, said in answer to a supplementary question:
"… so far as the Scottish and Welsh Bills are concerned—and the noble Lord is talking about devolution—I understand that a review of representation in another place undoubtedly would be necessary".

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At a further stage in the exchanges on that day, he went on:
"… if there is any injustice at all, it is that England should have far greater representation than she has at the present time".—[Official Report; col. 735.]
I would make just one other point. The noble and learned Lord, Lord McCluskey, has complained that the Opposition Amendment recommending a Speaker's Conference has funked the issue of what the Opposition think is the right number of Scottish constituencies. But there is no question of funking this matter. There is no mystery about it. The answer is quite clear in the Kilbrandon Report, and the number is 57. But as this Amendment makes absolutely clear, no one wants a rigid adherence to 57. Of course, geographical and other appropriate considerations should be taken into account. Hence the wording of this Amendment, which allows up to 63 seats, and that would mean a 10 per cent. over-representation for Scotland at a time when that country will have its own Assembly, with far-reaching powers. In fairness to the Scottish electorate, what is absolutely essential, as I said a moment ago, is that at the time of the referendum the price tag for devolution should clearly be seen in the shop window.
4.29 p.m.
Lord RAGLAN: My Lords, it is very useful and very necessary that this matter should be raised and ventilated in your Lordships' House, because it has not been talked about very much though the problem is there, as two of my noble friends and several other noble Lords have made clear. But I cannot support the Amendment and I give two reasons for that. I am not necessarily against this continued representation from Scotland, and I am against amending that representation in this Bill.
I do not believe that it is for the House of Lords to say how many Members of Parliament should come from Scotland, and it is not for the House of Commons to say so, either. I doubt whether it is for a Speaker's Conference to decide the question. I stand to be corrected, but I believe that it would be for a Boundary Commission to decide what representation should come from the various parts of the United Kingdom. I would suggest in any case that it should be an all-British
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Boundary Commission and that one should not make a distinction as to the part of Britain in which these various constituencies are situated. Then they could make adjustments for sparsity, distance from Westminster, and so on, in the normal way. It may be that, even after a review by a Boundary Commission, Scotland would have more representation per capita than does England, and I do not believe that that would matter at all.
The question to which this Amendment does not address itself, although I believe that it is the important one, is the West Lothian question: the one named after the heroic efforts of my honourable friend Mr. Tam Dalyell, who pointed out that it is not a question of over- or under-representation, which may be accidental, but whether upon certain matters like health, housing or social services which are devolved to the Assembly under the Bill, Scottish Members should continue to vote when they affect England. There is an Amendment, Amendment No. 176, which deals with that question, and I hope to be here to speak upon it. Meanwhile, I repeat that I am afraid that I cannot support this Amendment.
Lord FORBES: My Lords, I should like to support this Amendment. I cannot believe that any Scot wants to be over-represented in any Parliament. I am sure that that is absolutely wrong. The whole of the Bill represents nothing but appeasement of the Scottish Nationalists. Surely we have learned by now that appeasement has never paid. Instead of wasting its time upon this Bill, it would be very much better if Parliament paid some attention to our defence, or the lack of it, because that is where the danger lies. Furthermore, I simply cannot understand how any Government can bring the most important constitutional issue of our time before Parliament and then guillotine it. If that can happen, I believe that anything can happen.
The Earl of LAUDERDALE: My Lords, it would be a pity if we were to allow the points made by the noble Lord, Lord Raglan, to go unanswered before we come to the "crunch". The noble Lord suggested that it is none of our business to tamper with the structure of another place, but what we are seeking to do is to give another place the chance to consider its own structure. The noble Lord

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also said that it is not for a Speaker's Conference but for a Boundary Commission to settle matters of this kind. But of course a Boundary Commission ultimately takes its instructions from a Speaker's Conference. Whatever be the history of the disparity, the over-representation that now exists reflects a deep and still growing economic disparity between Scotland and the South, and it goes to the heart of the issues which lie behind this Bill.
I am a repatriate Scot. From the age of seven I dreamed and prayed that one day I might grow up and live and work for Scotland. My prayer was not answered until I was 40. One prayer which I did not think of then, and it is too late now, was to be given a "Scot's tongue in ma heid". However, I was educated abroad, by which I mean Sussex, and I was reared abroad, by which I mean Staffordshire. Therefore I look at this matter as a repatriate Scot who has come to observe his fellow countrymen with envy, awe and surprise but always with affection. One thing which I think I can say as a repatriate Scot is that the Scots are always generous, reasonable and loyal. They are very generous, they are very reasonable and they are very loyal once they have grasped the issue.
The issues that are shrouded in this Bill are gradually becoming clearer to the people of Scotland, as some recent political events have made clear. The by-election at Garscadden is one example. The by-election at Hamilton is another. At Hamilton, there was a swing from the separatists back to the unionist-minded Labour Party, and there was an equally significant swing from the separatists to the Unionist and Conservative Party, for which I think we ought to give due credit—and I hope that my noble friend Lord Dundee will pass this on to his son—to the admirable performance of Lord Scrymgeour as a candidate in that election. The point is that there is a swing back from the seductions of a separatist outlook towards the essentials of a unionist outlook, and I say "unionist" in the sense not of the Conservative Party but of unionism within the United Kingdom, a unionism which is supported by both of the main Parties of State.
As the truths are gradually dawning on the people of Scotland and as the referendum approaches, I believe it to be vital
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that the essential issues should be made clearer and clearer all the time. Do the Scots really want the fullest voice at the centre of power in the United Kingdom? I believe that they do, but it is for the Scottish electorate to answer. Will this kind of devolution assist the fundamental problem of jobs and prosperity? And if the Scottish people do want this kind of devolution, surely they should, in equity, see that there is a proper price. I believe with my noble friend Lord Strathclyde and others that they should have the fair play issue fairly put before them. I am quite certain that they would scorn any unfair advantage and I, too, shall support whichever of these two Amendments is divided upon by the movers.
4.38 p.m.
Lord SHINWELL: My Lords, I suspect that my noble and learned friend the Solicitor-General for Scotland is straining at the leash to dispose, with his impeccable logic, of this Amendment or of any similar Amendment. What seems to have been forgotten in the course of the debate— and it has been a prolonged debate with very prolonged speeches, many of which I failed to understand, although that is my misfortune and not the fault of those who were responsible for the speeches—is that we are just experimenting. That is all.
In the course of the Second Reading debate I ventured the observation, which I mention merely as an illustration, that, generally speaking, we accept the principle of devolution, which means more autonomy for the various local authorities in the country and for the people in general, whether in England, Wales, Scotland or Northern Ireland. But what is extremely important—indeed fundamental—is: what is to be the nature and the content of the change that is to take place? In other words, what do we mean by devolution?
If it had been left to me, I should not have thought for a moment of the creation of another Assembly, with all this hullabaloo and lah-di-dah about numbers and so on, which I believe—I may be wrong, and I hope that my noble and learned friend will correct me if I am wrong—is very largely motivated by political conceptions. Indeed, the whole matter started in that fashion.

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While I listened to part of this debate and to some of the other debates which we had during the Committee stage of the Bill, I wondered whether it would not have been better to have deferred consideration of this Bill until after the Hamilton by-election. In point of fact, the Hamilton by-election has placed a quite different complexion on the whole situation. If we had had the Hamilton by-election and the Nationalists had been frustrated, if not almost completely destroyed, then we should not be arguing in this way about the numbers, the Assembly itself, its functions, whether devolved or reserved, et cetera. One could say a great deal about this, but I think the right thing to say is what was said by the noble Lord, Lord Strathclyde, who speaks rarely but when he speaks there is no question about his logic. He said that of course the Scots would be very fair. We know that—so long as they get their own way! Everybody recognises that and there should be no complaint about it.
However, what are we to do about this Amendment? With the greatest respect to the noble Lord, Lord Monson, who speaks so well and is undoubtedly very knowledgeable on this, as indeed he is on every subject on which he expresses an opinion, I must confess that I do not care much for his Amendment. It is politically motivated, of course, and indeed almost every speech has been politically motivated. From the Conservative point of view I can understand it. They will be asking, "How many Members are we going to have representing Scotland? Which are to be the constituencies, and are they to be the kind of constituencies which would be on the Right instead of on the Left"—and of course nothing in the centre. From the Labour point of view they will be asking, "How many constituencies are we going to have in Scotland, both for the purposes of the Assembly and also for the purposes of Westminster, which will be conducive to advantages of a political character in the future". That is what it is all about, so why are we not frank about it? Why can we not have a little more candour about it?
I suggest that on this occasion we should accept what is now in the amended Bill, because we are going to experiment. By that I mean that we start off with a particular number which on the whole
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appears to be fair, reasonable and related to the constituency situation, and which appears to provide a measure of autonomy for the people of Scotland which they have been demanding for a long time. As my noble friend Lord Wigg said, so long as there is no question of separation and disintegration of the United Kingdom, for that is the very last thing—I put it in my own fashion—that we can afford. We have far too much trouble on our plate. The noble Lord opposite said that, instead of talking about this, we should be talking about defence: how right he is. Then we should be able to convey our apprehensions about the future and to indulge in warnings which are derided sometimes, perhaps to our discomfiture which may be even worse than discomfiture in the future.
So I suggest that we should not trouble so much about this. It is an experiment and when the Assembly is created, and then the referendum is to come, the people of Scotland will say, "We have had enough of this". The noble Lord opposite spoke so eloquently about the wisdom that resides in the Members of the House of Lords that I felt quite flattered, because I thought I might be included. The people of Scotland will probably say, "We have had enough of this, and besides we are not going to win the World Cup so what does it matter?" I do not know whether I am making the speech which my noble and learned friend the Solicitor-General will make after me; if so, he will make it much better of course, but if he is going to dispose of the Amendment I am entirely on his side, perhaps for the first time in the course of these debates. Nevertheless, may I say, quite earnestly and sincerely but with the greatest respect and meaning no offence whatever, and certainly no malice is in my mind about it, what we have had is just a lot of tarradiddle. It is an experiment, and when you are dealing with an experiment you make your contribution to start with and then you amplify and you develop; that is what we have to do, and I suggest that that is what the Government have now provided in the amended Bill and we should rest on our laurels and leave it at that.
Lord BANKS: My Lords, the noble Lord, Lord Monson, in proposing his

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Amendment was quite correct when he said that the Liberals agree with a reduced membership for Scotland in the House of Commons if a satisfactory system of devolution is achieved. While we support this Bill we have, as we have made clear, reservations about it and we would certainly want to see it in its final form first. While we are not enamoured of Speaker's Conferences, nevertheless we believe that the balance of membership between Scotland, Wales, Northern Ireland and England should be dealt with as a whole, and we agree with the point of view expressed by the noble Lord, Lord Raglan, when he said that we should not deal with the size of the Scottish membership in the context of this Bill. Certainly we do not feel that we should attempt to set limits upon that in the context of this Bill this afternoon. It follows therefore that we oppose the Amendment proposed by the noble Lord, Lord Monson, and it follows also that we should not be any happier if it were amended along the lines proposed by the noble Lord, Lord Harmar-Nicholls.
4.47 p.m.
The Earl of PERTH: My Lords, as the noble Lord, Lord Shinwell, said we have had a long debate on this subject and I think it is rather remarkable but not altogether surprising that the first six speakers on these Amendments are the known opponents to the Bill. I do not blame them for that. I recognise it. They have been completely honest about it the whole time, but I think your Lordships should make note of the fact that one and all of them throughout the Committee stage have said that they are against the Bill and would like to see it out of the way, altogether. Indeed the noble and learned Lord, Lord Wilson of Langside, nearly went so far as to divide the House on Second Reading. I only mention that, because I think it is significant when we consider the Amendments which are tabled at the present time.
I think it was the noble Lord, Lord Monson, who said that for 175 years the Scots were grossly under-represented in the House, and yet at this moment the possibility that for a very short while they might be over-represented if the Assembly as set up is a terrible affair apparently and must not be allowed for all the reasons
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that have been deployed. I think we should have a little patience. I think we should pay particular attention to Amendment No. 176 which calls for a Speaker's Conference if there is to be an Assembly. I should like to ask all those who have spoken so strongly in favour of this and indeed of fairness, what happens if in the referendum the answer is perhaps that there should be no Assembly. Would they still feel that there should not be over-representation? I assume from what has been said by those who supported this Amendment that they would still wish the numbers to be reduced to what is fair.
Lord HARMAR-NICHOLLS: My Lords, if the noble Earl will allow me, thought I had made it perfectly clear that the reason why this point was being raised was because of this Bill. Without it, no doubt the position would carry on and everybody would wish it to carry on until it was properly dealt with along with other matters.
The Earl of PERTH: My Lords, we know the position of the noble Lord, Lord Harmar-Nicholls, and I thank him for making that clear. I wonder whether I myself would feel that, for a very long time anyhow, the representation which was palpably overweighted should remain. But for the present I think it is in every way appropriate that things should stay as they are, bearing in mind that there should be a Speaker's Conference if and when the Assembly is set up. I would say to those who quoted Garscadden and Hamilton that I personally believe that the reason for the check and decline in the vote of the Scottish Nationalists is because the people in Scotland know what they are up to. They want an Assembly. Once they see an Assembly in their grasp then the need for support by a large number of those who voted for the Scottish Nationalists is no longer relevant. I cannot prove that, but I do not think one should take too much comfort from a fall in the support for the Scottish Nationalists in those two by-elections. In the Amendment we are asked to take a number out of the hat—it should be 57, it should be 60, it should be 63. Surely that is the business of the Speaker's Conference and not for us. I for one will certainly go into the Lobby against the Amendment.
4.51 p.m.
Earl FERRERS: My Lords, the noble Lord, Lord Shinwell, I think said that what we had had was a tarradiddle. I would respectfully disagree with him over that because I believe this Amendment concerns fundamentally the form of this Bill. The difficulty is that, as the Bill is constructed, what happens in the future as a result of our action is not at all easily determined now. We cannot see what the future is going to be. I find that I have a great deal of sympathy for those who say that after all the Scots are now going to have an Assembly and there will be 221 people looking after the affairs of Scotland, whereas there were only 71 before; that now that the power over Scottish domestic issues is going to be removed from Scottish Members of Parliament, that in itself is a requirement for reducing the number of Scottish Members of Parliament. Why indeed, goes the argument, should the number remain the same?
These arguments are perfectly fair and wholly just, because they were recognised by the Kilbrandon Report, and I would venture to remind your Lordships of what is said in paragraph 815:
"…it is possible to argue for the removal of the over-representation of Scotland and Wales on the grounds that it would both be undemocratic and constitute a grave injustice to the people of England if this over-representation were to be retained when Parliamentary time had very largely to be devoted to debating and legislating for England on matters for which Scotland and Wales had their own legislative assemblies. Indeed, in those circumstances there would be much to be said for reducing the representation of Scotland and Wales below the level based on population, as was done in the case of Northern Ireland; the amount of this reduction would be a matter for discussion in the light of the extent of devolution, and it is not possible to lay down any hard and fast rules".
What has been said today is indeed part of that discussion. What has been said has in some ways been quite controversial, but it is understandable and it is valid and it is justified. But of course, other than what the noble Lord, Lord Shinwell, said and what the noble Earl, Lord Perth, said, it does nevertheless in the main constitute one point of view.
Who exactly can say, if one of these Amendments is passed, what the right figure is? Lord Kilbrandon said in his report that it is not possible to lay down hard and fast rules or to state a figure.
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The difficulty, as I see it, with these Amendments is that they do state a figure, or a limit of figures. Lord Monson's Amendment says between 57 and 60. Lord Harmar-Nicholls says, "Let us put it up to 63", and I think his expression was "to be on the safe side". Domestic issues have been devolved, and that is an argument for lowering numbers. But of course, for Scotland, the United Kingdom Parliament is still responsible for overall matters such as foreign affairs, the economy, defence, national security; and that is an argument for keeping the same representation on these very basic and important issues.
I believe that it is difficult to put a precise figure or to put a right figure upon the representation. I believe that it is right to take advice. We here on both these Amendments are picking at figures; they may be right or they may be wrong. But we passed at Committee stage an Amendment suggesting a Speaker's Conference. The noble Lord, Lord Monson, said that was futile. Another noble Lord—I forget who—said it was feeble. I accept that if you do that, the people of Scotland will not know, in the words of the noble Lord, Lord Monson, what is is they are going to buy. That is a fault with that system. On the other hand, I would suggest that it does at least provide the principle upon which advice can be taken. When such a Speaker's Conference, if it is accepted, makes its recommendation, that is the time, I should have thought, that it is right for Parliament to decide the figure, in the light of the recommendation made and having taken into account all the varying and differing factors, and not before the Speaker's Conference.
My noble friend Lord Harmar-Nicholls made quite an impassioned appeal to your Lordships to vote the way that your Lordships wish to vote, irrespective of what any Front Bench says. I have no doubt at all that my noble friend and indeed your Lordships will vote exactly the way that your Lordships feel, irrespective certainly of what I have to say. I am bound to say that I have strong sentiments and sympathy for the views that have been expressed, but I do not believe that it is right to fix this figure at this juncture. I believe it is right to have advice upon this. My noble friend

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asks what advice would be given from this Front Bench. I would say that I could not from these Benches advise your Lordships that either of these Amendments is right. I could not advise your Lordships that the passing of either of these Amendments would be right for Scotland, right for the House of Commons or right for the House of Lords. What I do think is that the situation has changed because of this Bill; it has changed as a result of it. The change should be recognised and advice should be taken on what should be the right number of Members of Parliament to have. This we have achieved by passing the Amendment relating to the Speaker's Conference. All I can say to my noble friend Lord Monson is that that is the advice I would give him. I have no doubt that he will consider that advice and use it in whatever way he thinks fit.
5 p.m.
Lord McCLUSKEY: My Lords, we have in Committee before today debated or talked about this issue more than once. We certainly debated it at some length when we were discussing the clause which is now Clause 64 of the Bill. I think that the noble Lord, Lord Harmar-Nicholls, made a slip of the tongue when he attributed that clause to the Government. In fact it was moved by the Front Bench opposite. We discussed the matter very fully on that occasion when we discussed the clause providing for the possibility of a Speaker's Conference to consider representation at Westminster after the first meeting of the Assembly.
Against the Government's advice and, indeed, advice from certain other parts of the House, that Amendment was carried to a Division and accepted on a narrow majority—102 votes to 93. When referring to that occasion the noble Lord, Lord Monson, suggested that I misled the House. I am distressed that that suggestion was made and I hope that the House will allow me the indulgence of replying to it more fully than I think the whole merits warrant.
The matter of the history arose in the course of that debate when the noble Lord, Lord Campbell of Croy, who I am glad to see in his place now, specifically said something that I did not at any time dispute. He said on 16th May, at col. 175:
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"After the Act of Union in 1707, 45 Members of Parliament from Scotland attended the United Kingdom Parliament. That was considerably fewer than the comparative numbers of the populations North and South of the Border at that time would have justified. But finance and the amounts of tax paid were clearly also taken into account in those days".
I did not dispute that at any time and no one in the Committee disputed it. However, I referred to the history when I rose to speak. The noble Lord, Lord Campbell of Croy, had not gone into the history in great detail and I referred to the matter in the following words:
"If I may say one word about history, the noble Lord, Lord Campbell of Croy, referred to the history, but my reading of history books has been slightly different to his"—
I am sure that I said, "slightly different from his"—
"because I think that there was a change in 1832, following the Reform Bill, and that led to an increase of eight in the number of Scottish Members of Parliament".
The noble Lord, Lord Campbell of Croy said:
"If the noble and learned Lord will give way, I did not follow the various changes of the Reform Bills in the last century; I said that it was not until the 1885 Bill that representation which reflected the numbers of population was reached".
I replied:
"I am obliged to the noble Lord for making his position clear on that".—[col. 194.]
Then, having in front of me Prydes' Book, volume 2 at page 53, I tried to express a passage without quoting it in full. The passage I had before me reads as follows:
"The representation of Scotland in the United Parliament was the one issue upon which the Commissioners clashed. The Scots, conscious of what they were sacrificing and jealous of their country's dignity, thought that they should have 50 Members in the House of Commons where the English had 513. But the English, used to linking the ideas of representation and taxation, and mindful of Scotland's small revenue—about one-fortieth of England's—suggested 38. The figure agreed upon was 45 with a proportional number—16—of Scottish peers to sit in the House of Lords".
On a taxation basis Scotland would have had 13 Members, I think, in the Union Parliament. On a population basis I do not know what number it would have had, but in 1707 there was no universal suffrage and representation in Parliament in those days was not upon the basis of population but upon the basis of taxation, wealth and property. Upon that basis the Scots were, in fact, offered by the English over-representation

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and compromised and settled for an even higher figure—namely, 45—than the 38 that was offered to them. All that appeared in a summary of that passage when I spoke at column 196 and I would refer your Lordships to it. My summary reads as follows:
"At that particular time the Scots wanted 50 seats in the Westminster Parliament, the English offered 38 and a compromise was struck with 45, but that was over-representation on any basis. In fact, the basis was probably wealth, not population, but on any basis it was overrepresentation".
Of course, what I had in mind at that time was that population was not the basis for determining what Members of Parliament there were. The noble Earl, Lord Perth, in order to clarify my remarks said to me:
"I just wish to ask the noble and learned Lord, Lord McCloskey, whether he is sure that he is right about the basis of population in regard to the figures at the time of the Act of Union and now".
I replied and I found upon this:
"I think that was not the basis upon which it was approached in 1707. It was based upon the wealth of the country and at that time I think it was estimated that the wealth of Scotland was one-fortieth of the wealth of England".—[col. 196.]
I do not believe that anything I said in the context of that debate misled the Committee.
The new clause, which is now Clause 64, was moved, as I have said, by the Front Bench opposite. If I may say so, I thought that at the time there was some little embarrassment on the part of the official Opposition because it was very reluctant to be tied down to the numbers that it would see attending the United Kingdom Parliament post-devolution. Indeed, even today the noble Earl, Lord Ferrers, in speaking about this particular Amendment and the Amendment to the Amendment, has not really made Conservative intentions in that regard any clearer. I can understand why that is so and he has explained his reasons.
I made it clear that the Government do not accept that devolution carries with it a necessary and inevitable reduction of representation at Westminster. That has been made clear by the Government since they first published their proposals in 1974. I shall not attempt to rehearse all the arguments that were given on the
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previous occasion or, indeed, on the occasion when the noble and learned Lord the Lord Chancellor replied—an occasion that was also referred to this afternoon.
However, let me remind your Lordships of the main branches of the argument. First, all matters essential to the unity of the United Kingdom will remain the sole responsibility of Parliament. There can be no good argument for a reduction in the essential representation of the Scottish people at Westminster on such matters as the overall management of the economy, national security and defence, international affairs, trade and industry and the like on devolution.
Secondly, the inherent sovereignty of Parliament itself to legislate on all matters, including those to be devolved, is still to be maintained. Indeed, Parliament will be able to modify and to transform the devolution settlement itself. Again, that is not a basis for a reduction in the representation. Thirdly, the exercise of the policy override powers to reject Assembly Bills, to prevent and to require action and to revoke subordinate instruments of the Scottish Executive will be subject to Parliament's approval. In my submission that cannot be married to a reduction in Scotland's representation. Fourthly—and I try again to echo a point that I sought to make in relation to the European Parliament and Luxembourg's representation there—a simple arithmetical basis or a population basis for representation of the kind reflected by these Amendments is much too simple an approach to the composition of a Union Parliament, even though the movers of this Amendment contemplate some marginal flexibility. I remind your Lordships that there has been little relative change in the size of the electorates in Scotland, England and Wales respectively since they were reviewed by the Speaker's Conference in 1944.
I should like to return to a point which I made earlier. I ask the House to reflect upon whether our non-elected Chamber should seek to secure a reduction in the number of elected Members in the House of Commons, because that is what the Amendment would do. In our earlier debate I think that the noble Earl, Lord Ferrers, very properly felt sensitive about this particular matter and so I think did the noble Lord, Lord Campbell of Croy.

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Indeed, it was claimed by them that one of the virtues of the clause that they moved was that it in no way sought "to interfere or to dictate", or even "to lecture" the other place upon its numbers. I believe that the Amendment now before-us would, on the part of this House, be an unwarrantable trespass and I ask your Lordships to consider very carefully all the implications of accepting the Amendment whether in its pure form or as suggested to be amended by Amendment No. 5.
Again, I must seek to make the point that Amendments of this kind seem to threaten the people of Scotland with a reduction in their representation in the United Kingdom Parliament. Although I see that the noble Lord, Lord Harmar-Nicholls, disagrees with me about that, as he was good enough to explain, I think that it will be seen by many in Scotland as a threat. Therefore, it will tend to fuel the arguments of those who insist on separatism and may tend to alienate some moderate and reasonable opinion. So I do not believe that that is conducive to maintaining the unity of the United Kingdom. I believe that I am entitled to some support from the noble Earl, Lord Ferrers, on this and I believe that I have it, although it was not perhaps very enthusiastic. But, certainly, as I understand it, no Front Bench is advising anyone to support this Amendment. I invite your Lordships not to accept Amendment No. 4, whether in its pure form or as sought to be amended by Amendment No. 5.
Lord HEWLETT: My Lords, before the noble and learned Lord sits down perhaps he would answer a question put by my noble friend Lord Ellenborough. It was said in this debate that the Minister of State in the Privy Council Office who piloted this Bill through the House of Commons used the word "dishonest" in reference to an expectation that Scottish membership of the House of Commons should remain at 71. If the Minister who piloted the Bill through the other place considers that it is dishonest, how can the Minister piloting the Bill through this House have any other view?—unless the Party that is trying to pilot the Bill through is speaking with two voices. I believe that Members of this House would like an answer to this paradoxical situation.
Lord McCLUSKEY: My Lords, with the leave of the House, I rise to my feet. I do not think that it is for me to answer for my right honourable friend Mr. John Smith. I believe that the noble Lord, Lord Ellenborough, made it clear at the time when these remarks were attributed to him that he was not the Minister of State at the Privy Council Office.
Lord ELLENBOROUGH: My Lords, it was in 1974.
Lord McCLUSKEY: My Lords, at that time I think that my right honourable friend was a Back-Bencher and held no ministerial office, although he may have been the Parliamentary Private Secretary to the then Secretary of State for Scotland. I do not think that he then held a ministerial office—certainly no high ministerial office. It is not for me to answer for him. The matter was raised in another place and if an explanation is to be sought, it ought to be sought there.
Lord HYLTON: My Lords, I very much appreciate the speech of the noble Lord, Lord Monson, in moving his Amendment. He was absolutely right when he said that we should make clear the cost or the price of devolution. He did another valuable service in pointing out that it was only from 1949 onwards that somehow inequity has crept into this question of representation of Scotland by numbers. I do not want to delay the debate, but I should just repeat or draw attention to what I said during the Committee stage on 11th April at columns 516 and 517 of the Official Report. I then said:
"I suggest the answer may be that a constitutional convention should grow up whereby Scottish and perhaps Welsh Members in another place should always abstain from voting on matters which are of purely English concern".
I try to make that point again. The noble and learned Lord, Lord McCluskey, has not shown any favour at all towards the Amendments before us. I ask him: can he take on board the suggestion I have tried to make and now repeat? If he cannot, I for one will feel obliged to support the Amendments in the Lobby.
Lord CAMPBELL of CROY: My Lords, I shall speak very briefly, particularly as the noble and learned Lord, Lord McCluskey, referred to the debate

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that we had on 16th May and to remarks that I made on that occasion. I think that he has helped to clarify the situation. The noble Lord, Lord Monson, has already quoted what the noble and learned Lord, Lord McCluskey, said so I shall not quote it in full again. However, he said that the Treaty of Union in 1707 wrote in over-representation for Scotland. He has made it clear today that he was speaking in terms of wealth and not in terms of population. However, as he also added some extravagant language which was not typical of him, thinking that he was in an asylum, of course, he received great prominence in the Scottish Press the next day. That is why we must put the facts on the record. He has helped in that today.
At the time of the Treaty of Union it was agreed that out of a House of Commons of 568 there should be 45 Scottish Members, and that out of a House of Lords of 206, there should be 16 Scottish Peers. That meant that although at that time Scotland's population was one-fifth of that of England—instead of one-tenth, as it is today—Scotland had-only one-twelfth of representation—thinking in terms of numbers of population—in both Houses of Parliament.
As regards the reforms, in order to save time on that occasion I did not mention the Reform Act 1832 or the Reform Act 1867. I went to the Reform Act 1884–85, which was the one that made the material difference and that added the number of Scottish Members which gave parity numerically. One of the few occasions —perhaps the only one—was 16th May when the noble and learned Lord appeared to lose his usual composure, which has been displayed during the reminder of 13 long days and nights of the Committee stage. As a result, as I said, his words found their way prominently into the Scottish Press. But he found himself defending representation, decided in 1707, on a wealth basis and not on a population basis. The representation could only be regarded as over-representation of Scotland at that time if one brought in wealth as a weighting; that is to say, about 40 to one. That was certainly an unusual argument for a Labour Government Minister to have to make in Parliament in the 1970s; of course, in those days—in
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the early 18th century—wealth may have been considered more important than numbers of population. But we must be clear that in terms of numbers that situation was not over-representation, and numbers, of course, is the principal criterion now. Nobody has any argument about that.
I am glad that today the noble and learned Lord has spelled it out more clearly and made it clear that on 16th May, he was speaking in terms of representation in wealth and not in terms of numbers of population. It was not comparing like with like. I think that the trouble was that in one sentence he spoke of overrepresentation of Scotland in 1707 and in the following sentence he spoke of population parity. If he reviews what he said and what was quoted by the noble Lord, Lord Monson, he will see that that was the trouble: by speaking of overrepresentation of Scotland in 1707 in one sentence and then in the consecutive sentence speaking of population parity, confusion was caused and the very short versions published in the Scottish Press were misleading. I hope that that has now been corrected.
The noble and learned Lord criticises this Amendment because he says that it would be telling the House of Commons what to do. I suggest that what is happening is that noble Lords who have tabled and moved this Amendment and noble Lords who have indicated their support for it are offering another place an Amendment which it can reject; they are not telling another place what to do. I must make that clear. However, I would also make it clear—and noble Lords will not be surprised to hear this—that I prefer the Amendment which I moved during the Committee stage and which can be regarded as much weaker, but which none the less was passed by your Lordships' House in Committee. I think that it is more appropriate and gives enormous latitude to those who have to look at this difficult question, if and when an Assembly is ever set up.
Lord RAGLAN: My Lords, I thank the noble Lord for giving way.
A noble Lord: Order, order, we are on Report!
Lord RAGLAN: My Lords, I am asking the noble Lord a question, which I may do if he allows me to. I am not clear whether the House of Commons itself is constitutionally able to adjust its own representation on a Bill such as this, or whether it does not have to wait for a Speaker's Conference and a Boundary Commission.
Lord CAMPBELL of CROY: My Lords, I was giving way to the noble Lord, Lord Raglan, who, I felt sure, was about to make a short intervention—which he did. Of course, had he expanded his remarks into a speech, your Lordships would have recognised that this was the wrong occasion, as he has already spoken on this Amendment. I had the same view. I cannot give him an answer based on constitutional law or the study of Statutes because I am not in a position to do that. But I certainly took a similar view when I moved the Amendment in Committee—that is to say that this was not the appropriate vehicle to make a change of this kind. Parliament is sovereign and can do what it wishes. If the other place were to accept this Amendment and decided it was something it wanted to do, it could do it. Even if constitutionally it was not the correct place, it could find some other ways of carrying it out.
Lord HARMAR-NICHOLLS: My Lords, has it not always been the fact that Parliament has decided what its size would be, but a Boundary Commission has decided how that figure will be arrived at?
Lord CAMPBELL of CROY: My Lords, Parliament gave instructions to the Boundary Commissions and, within them, a certain amount of discretion. Boundary Commissions make their reports at the intervals prescribed. It ends up with a House of Commons with two or three Members more, or two or three less. That is within the latitude it has been given. This is the answer to the noble Lord's question. I do not want to go into it in detail now. It would mean the constitutional arrangements by which Parliament gives its instructions to the Boundary Commission.
To shorten the matter, I would say that in moving my Amendment in Committee I felt that it was not appropriate that these matters should be dealt with in
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this Bill. That is one of the reasons why I prefer my Amendment—and not this one. But my noble friend Lord Ferrers has already indicated the view which we on the Front Bench share. Therefore, that has been made clear. But I say again that I am glad that the noble and learned Lord, Lord McCluskey, has, on this occasion, helped several of us to make sure that the record about representation is correct and to realise the fact that the criteria in the early eighteenth century were considerably different from the ones that matter today.
5.24 p.m.
Lord MONSON: My Lords, this has been a most constructive debate. The voices of the noble Lord, Lord Strathclyde, my noble friend Lord Wilson of Langside, and one or two other noble Lords on the Conservative Benches, seem to me, if I may say so, the true voices of Scotland. I have always found the Scots to be a clear-thinking and, above all, a fair-minded people. Those qualities have been amply demonstrated this afternoon.
The noble Lord, Lord Shinwell, was quite disarmingly complimentary about me, for which I am most grateful. The sting in the tail was that he accused the movers of the Amendment of being politically motivated. I suppose that all life touches on politics to some extent. However, I would suggest to him, and those who may think like him, that if separate opinion polls were taken in England, Wales, Scotland and Northern Ireland, the overwhelming majority of the electors of each individual, constituent part of the United Kingdom would accept Lord Wigg's concept of one vote, one value, which is to say equal representation for all parts of the United Kingdom.
The noble Lord, Lord Banks, advanced a most ingenious reason for the Liberals not supporting this Amendment, despite their strong support for Kilbrandon. I am bound to say that the Liberals rather remind me of St. Augustine—"O Lord, give me chastity, but not yet. "I have no wish to do anything as drastic as to impose chastity upon the Liberals, but I wish that they would be a little more consistent in their frequently declared principles.
The noble Earl, Lord Perth, made the suggestion that if the Amendment were

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rejected, over-representation would continue only for a very short while. I cannot see anything to justify this assumption. He also put forward the suggestion that Amendment No. 176 would solve the problem. Amendment No. 176 has nothing whatsoever to do with Scottish representation.
The Earl of PERTH: My Lords, I wonder whether I might take this opportunity to correct that statement. I made a mistake. It ought to have been Clause 64, not Amendment No. 176. I am grateful to the noble Lord for giving me that chance.
Lord MONSON: My Lords, I entirely accept that. The noble Earl, Lord Ferrers, like the noble Earl, Lord Perth, asked what was the right figure, and rather suggested that we were plucking figures out of the air. But we are not doing so at all. The figure of 57 was suggested by the Kilbrandon Commission to give parity.
In an earlier debate in Committee I instanced five Scottish constituencies—Orkney and Shetland, the Western Isles, Caithness and Sutherland, Ross and Cromarty, and Argyll—where over-representation was justified. If one takes the view that each of these constituencies should have half the normal electorate, that gives 2½ extra Scottish seats, which rounds up to three. It is possible to argue that that is slightly too rigid and that one might have more. But these figures are based on logic and are not plucked out of the air. If I may correct the noble Earl, it was not I but the noble and learned Lord, Lord Hailsham, who said that without such an Amendment as this the Scottish electorate would not know what they were going to buy.
Turning now to the noble and learned Lord, Lord McCluskey, I accept that he was entirely sincere in the arguments he put forward about the length of time that over-representation has prevailed for the Scots. This question of exactly how long Scotland has been over-represented seems to be one of interpretation. He based his figures on wealth. Most people, I think, would consider population as the right criterion on which to base it. I am most grateful to the noble Lord, Lord Campbell of Croy, for making this point clear. The
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fact is that, on the basis of population, Scotland was under-represented until 1885, when matters were put right. The almost accidental over-representation subsequent to 1918 arose as a result of population drifting away from Scotland. It was not specifically intended.
As to the question of our lecturing the other place on what to do—as a result of a guillotine, the other place never had a chance of considering such an Amendment. The other place debated Speaker's Conferences but never got down to the issue of exactly what the Scottish representation would be. I suggest that fair representation is not something that can be given or taken away at the whim of any part of Parliament. It is something to which every person in a democracy is automatically entitled as of right.
My noble friend Lord Ellenborough thought that we should be a little more flexible. My noble friend Lord Harmar-Nicholls urged a show of generosity, which he suggested would pay dividends. I am very glad to accept their suggestions. Therefore I am pleased to accept their Amendment. My noble friends and I are pleased to accept their Amendment to our Amendment.
The CHAIRMAN of COMMITTEES (Lord Aberdare): My Lords, the original Amendment is No. 4, since when Amendment No. 5 has been proposed as an Amendment to Amendment No. 4. The first Question is that Amendment No. 5 be agreed to. As many as are of that opinion will say "Content". To the contrary, "Not-Content". I think the "Contents" have it. Clear the Bar.
Tellers for the "Not-Contents" have not been appointed pursuant to Standing Order No. 50. A Division therefore cannot take place, and I declare that the "Contents" have it.
The Question therefore now is that Amendment No. 4, as amended, be agreed to.
5.33 p.m.
On Question, Whether the said Amendment (No. 4, as amended) shall be agreed to?
Their Lordships divided: Contents, 61: Not-Contents, 105.

CONTENTS

Alexander of Tunis, E.

Gisborough, L.

Pender, L.

Atholl, D.

Glasgow, E.

Robbins, L.

Auckland, L.

Harmar-Nicholls, L.

Roberthall, L.

Blake, L.

Hewlett, L.

Saint Oswald, L.

Caccia, L.

Hylton, L.

Sempill, Ly.

Cathcart, E.

Killearn, L.

Spens, L.

Clwyd, L.

Kimberley, E.

Strathclyde, L.

Cottesloe, L.

Kinnoull, E.

Strathspey, L.

Craigavon, V.

Lauderdale, E.

Tenby, V.

Craigmyle, L.

Lindsey and Abingdon, E.

Terrington, L.

Crathorne, L.

Linlithgow, M.

Torphichen, L.

Daventry, V.

Macpherson of Drumochter, L.

Trenchard, V.

Ebbisham, L.

Mancroft, L.

Tweeddale, M.

Ellenborough, L.

Merrivale, L.

Vaux of Harrowden, L.

Elliot of Harwood, B.

Minto, E.

Vickers, B.

Faithfull, B.

Monson, L.

Vivian, L.

Falkland, V.

Montgomery of Alamein, V.

Ward of North Tyneside, B.

Foot, L.

Moyne, L.

Wigg, L.

Forbes, L.

Northchurch, B.

Wilson of Langside, L. [Teller.]

Gainford, L.

Nugent of Guildford, L.

George-Brown, L.

Onslow, E. [Teller.]

NOT-CONTENTS

Ampthill, L.

Hatch of Lusby, L.

Platt, L.

Avebury, L.

Henderson, L.

Raglan, L.

Bacon, B.

Henley, L.

Rathcreedan, L.

Balerno, L.

Hood, V.

Ritchie-Calder, L.

Balogh, L.

Hughes, L.

Romney, E.

Banks, L.

Hylton-Foster, B.

Sainsbury, L.

Birk, B.

Ilchester, E.

Samuel, V.

Blyton, L.

Jacques, L.

Segal, L.

Boston of Faversham, L.

Janner, L.

Shinwell, L.

Bourne, L.

Kaldor, L.

Simon, V.

Brockway, L.

Kilmarnock, L.

Skelmersdale, L.

Byers, L.

Kinloss, Ly.

Somers, L.

Clifford of Chudleigh, L.

Kirkhill, L.

Stamp, L.

Collison, L.

Leatherland, L.

Stedman, B.

Crook, L.

Lee of Newton, L.

Stewart of Alvechurch, B.

Cudlipp, L.

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

Stone, L.

David, B.

Strabolgi, L. [Teller.]

Davies of Leek, L.

Lloyd of Hampstead, L.

Stuart of Findhorn, V.

Davies of Penrhys, L.

Longford, E.

Tanlaw, L.

de Clifford, L.

Loudoun, C.

Taylor of Blackburn, L.

Diamond, L.

Lovell-Davis, L.

Taylor of Gryfe, L.

Donaldson of Kingsbridge, L.

McCarthy, L.

Taylor of Mansfield, L.

Dowding, L.

McCluskey, L.

Thurso, V.

Energlyn, L.

McGregor of Durris, L.

Wade, L.

Evans of Claughton, L.

MacLeod of Fuinary, L.

Wall, L.

Gaitskell, B.

McNair, L.

Wallace of Coslany, L.

Garner, L.

Maelor, L.

Walston, L.

Gordon-Walker, L.

Murray of Gravesend, L.

Wedderburn of Charlton, L.

Goronwy-Roberts, L.

Noel-Baker, L.

Wells-Pestell, L.

Greenway, L.

Ogmore, L.

White, B.

Gregson, L.

Oram, L.

Wilson of Radcliffe, L.

Hale, L.

Pannell, L.

Winstanley, L.

Hall, V.

Pargiter, L.

Winterbottom, L.

Hampton, L.

Parry, L.

Wynne-Jones, L.

Hanworth, V.

Peart, L. (L. Privy Seal.)

Harris of Greenwich, L.

Perth, E.

Resolved in the negative, and Amendment disagreed to accordingly.
Schedule 1 [Assembly constituencies]:
5.41 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 6:
Page 42, leave out lines 3 and 4 and insert—
("6.Regard shall be had, so far as practicable, to the boundaries of parliamentary constituencies.").
The noble Lord said: My Lords, we are here dealing with directions to the Boundary Commission about the new constituencies for the Scottish Assembly. We discussed this in Committee, when

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I tabled an Amendment which sought to delete from the Schedule the requirement that each Assembly constituency shall be wholly comprised in one Parliamentary constituency. My reason for doing that was that the Boundary Commission have a number of criteria which they must take into account, often conflicting—population, numbers, physical boundaries, local government boundaries and others —and to state that each Assembly constituency must be completely comprised in a Parliamentary constituency seemed to give them little latitude in the matter, particularly when, so far as local government boundaries are concerned, they are simply asked to "have regard so far as practicable" to local government boundaries. This Amendment uses the wording of the local government boundaries, which is:
"Regard shall be had, so far as practicable, to the boundaries of parliamentary constituencies.".
That is something which the Boundary Commission would try to carry out, but they would not be completely tied by the present obligation to place the new Assembly constituencies entirely within a Parliamentary constituency.
This has become more difficult because the Bill as it stands, with proportional representation in it, means there are now only 101 constituencies instead of 150. It was somewhat easier to fit 150 constituencies into 71, whereas it is rather more difficult to fit 101 into 71 and at the same time give the Boundary Commission latitude where the other criteria are concerned. I think it means that they would have to take 41 of the Parliamentary constituencies—presumably those with the largest populations; not necessarily the 41 with exactly the largest populations but 41 of the largest constituencies—and make them automatically Assembly constituencies. Then they would have to take the remaining 30 Parliamentary constituencies and divide them into two, because that is the way in which they will have to put 101, completely and without any overlapping, inside 71. That will make it more difficult for them to observe the other factors which they are bound to take into account.
I tabled the Amendment for two reasons therefore: first, it is not as extreme as the Amendment I moved in Committee and,
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secondly, because the Bill now deals with a smaller number of Assembly constituencies, 101 instead of 150. Boundary Commissions have a difficult task. Since our discussion on the last occasion, I hope the Government have been able to consider whether wording of this kind, which would give them some latitude—in fact the same as they have where local government boundaries are concerned—would be acceptable.
I understand from the frank answer which the noble and learned Lord, Lord McCluskey, gave on the last occasion that the reason for paragraphs (6) of the Schedule at present imposing an obligation was largely for the convenience of the electorate and of Party organisations. I accept that; I accept that the voluntary organisations of the political Parties work at present on a Parliamentary constituency basis and therefore it is much easier for them to cope with the elections for the Assembly if it is on a constituency basis too.
The noble and learned Lord also indicated that he thought it would be easier for the electorate because they are at present aware, or at any rate vaguely aware—those of them who take the trouble to find out—of where lies the boundary of the Parliamentary constituency in which they are, and to have yet another different constituency would be confusing for them. I accepted that there was weight in those arguments and we were glad to know why the Government had put this rigid obligation into the Bill. Nevertheless, I hope that, in view of the two main points I have made, the Government might consider that the Boundary Commission's task would be made that much easier if they were given this amount of discretion.
Viscount THURSO: My Lords, I have some sympathy with the Amendment, which is designed to give a certain amount of flexibility on this question. I agreed with the point made by the noble and learned Lord, Lord McCluskey, when a similar Amendment was discussed in Committee: namely, that it would be desirable that constituencies should be within Parliamentary constituencies for the convenience of political Parties. After all, under the new system of proportional representation, political Parties will be very important because it is on the basis

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of political Parties that the extra Members will be nominated, so their convenience is of some importance in the making of arrangements. However, I feel that the element of flexibility which the noble Lord, Lord Campbell of Croy, offers us is not unreasonable. Perhaps the Government will be able to accept this rather less rigid phraseology than the very rigid phraseology which is in the Bill as amended in Committee. I hope therefore that the noble and learned Lord, Lord McCluskey, will look on the Amendment favourably.
Lord McCLUSKEY: My Lords, as the noble Lord, Lord Campbell of Croy, explained, Schedule 1 deals with the creation of Assembly constituencies for which members other than the initial members are to be returned, and the Boundary Commission for Scotland will make proposals for these constituencies in accordance with Part II of Schedule 1. Paragraph (6) provides that each Assembly constituency shall be wholly comprised in one Parliamentary constituency. To allow Assembly constituencies to straddle two or more Parliamentary constituencies would conflict with paragraph (9) of Part II, where Parliamentary constituencies are taken as the basis for dividing the country into Assembly constituencies, and on practical grounds would surely complicate the work of the Boundary Commission in drawing up Assembly constituencies.
However, apart from technical m s of that kind, the Government after reconsideration remain of the view—and very strongly of the view—that the Parliamentary constituencies should remain the basis of the constituency framework within which the Assembly is to work. To depart from Parliamentary constituencies might indeed lead—the noble Viscount, Lord Thurso, has indicated sympathy for it—to marginally greater equality in the size of electorates, and it might lead to some gains in convenience in one direction. Nevertheless, we still believe that to depart from these constituencies would have serious disadvantages. I believe that I spelt these out on the previous occasion, but, briefly, I should like to remind your Lordships of these. We think that to depart from the Parliamentary constituencies would tend to confuse voters; it would detract from the unity of an area as a Parliamentary
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constituency; and it would complicate such matters as the Party organisations.
On the previous occasion I emphasised the importance of the Party organisations, and I have no hesitation in returning to that point, because I believe that certainly Members of this House will appreciate very well that the continued existence of a political Party in approximately its present form is very important to the survival of the kind of democracy that we have. We must not put serious burdens upon the political Parties if we can avoid them, in relation to this work which they do, and which is essential to the continuation of democracy. This is very important at the present time when we are concerned not simply with fighting Parliamentary elections, but also with Assembly elections, local elections, and indeed elections for the European Parliament or Assembly, where new constituencies which embace new areas have been proposed. For these reasons, which I gave at greater length on a previous occasion, the Government, after reconsideration, remain of the same view, and I would urge the noble Lord not to press the Amendment.
Lord CAMPBELL of CROY: My Lords, as the noble and learned Lord and the House will realise, this is not an Amendment that I would have expected to press. It was intended to find out whether the Government had recognised the advantage of more flexibility. I had recognised myself that if they did see the advantage of this, they would have had to make some alterations in other parts of the Bill as well. I still believe that although what is proposed may be convenient to Party organisations, it may, when the Assembly constituencies are produced, lead to some strange results regarding numbers and comparative numbers relating to electorates. The Government's view that they want to stick to what is proposed is clear, and so I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.53 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 7:
Page 43, line 30, leave out ("ordinary").
On Question, Amendment agreed to.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 8:
Page 43, line 34, leave out ("ordinary").
On Question, Amendment agreed to.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 9:
Page 43, line 38, leave out ("ordinary").
On Question, Amendment agreed to.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 10:
Page 44, line 5, leave out ("ordinary").
The noble Lord said: My Lords, prompted by the noble and learned Lord, Lord McCluskey, I should like to take the opportunity to point out that the subparagraph reads:
"The number, group and allocation of additional members at ordinary elections other than at the first ordinary election …".
I should have drafted the Amendment so as to relate to the word "ordinary" where it first occurs in the line in question. I am informed that, provided notice is taken of this and that I am on the record regarding this point, the necessary adjustment will be made by the Clerks before the next stage. I beg to move.
On Question, Amendment agreed to.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 11:
Page 44, line 7, leave out ("1(7)") and insert ("1(6)").
The noble Lord said: My Lords, this is a drafting Amendment which arises because the original Clause 1(7) has now become Clause 1(6). I beg to move.
On Question, Amendment agreed to.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 12:
Page 44, line 8, leave out from ("any") to ("automatic") in line 9 and insert ("alteration in constituency boundaries being made whether in consequence of an increase or a reduction in the number of electors or for any other reasons any").
The noble Lord said: My Lords, this is a drafting Amendment. As the subparagraph now stands, it is rather too narrowly drawn. The Amendment is designed to cover any circumstances in which changes may be made in the Assembly constituencies. What the
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present drafting had in mind—at any rate, mainly—was the possibility, for example, that the number or pattern of Scottish Parliamentary constituencies might be changed as a result of United Kingdom legislation. Any such alterations necessitating changes of the boundaries of Assembly constituencies might mean that the electoral region boundaries in turn would have to be redrawn. In that case the appropriate number of additional members in the various electoral regions might need to be revised. It is to cover these contingencies that the Amendment has been drafted, and I hope that it meets the circumstances. I beg to move.
Lord McCLUSKEY: My Lords, I should say that, without of course making any commitment to the principle contained in the part being amended, the Government accept that this is a sensible and proper Amendment to make in that context.
Lord DRUMALBYN: My Lords, I am much obliged.
On Question, Amendment agreed to.
Lord DRUMALBYN Lord DRUMALBYN moved Amendments Nos. 13 to 16:
Page 44, line 16, leave out ("ordinary")
Page 44, line 21, leave out ("ordinary")
Page 44, line 25, leave out ("ordinary")
Page 45, line 11, leave out ("ordinary").
The noble Lord said: My Lords, I beg to move Amendments Nos. 13 to 16 en bloc.
On Question, Amendments agreed to.
Lord GRAY Lord GRAY moved manuscript Amendment No. 17A:
Page 45, leave out lines 20 to 22 and insert—
("Central Scotland—Clackmannan and East Stirlingshire; Central Fife; Dunfermline; East Fife; Kirkcaldy; Stirling, Falkirk and Grangemouth; West Stirlingshire; West Lothian").
The noble Lord said: My Lords, I beg to move this manuscript Amendment on behalf of my noble friend Lord Drumalbyn. This manuscript Amendment is in substitution for Amendment No. 17 on the Marshalled List. My noble friend had put Amendment No. 17 on the Marshalled List in order to correct the inadvertent

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omission of West Stirlingshire, but unfortunately, somehow or other, that Amendment left our Dunfermline. My noble friend hopes that Amendment No. 17A repairs both omissions and sets matters to rights.
Lord McCLUSKEY: My Lords, it was certainly very careless to lose Dunfermline, but that will not, I trust, be taken amiss in that part of the world.
On Question, Amendment agreed to.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 18:
Page 46, leave out lines 5 to 13 and insert—
The noble Lord said: My Lords, this is an Amendment which, in the main, we have already discussed. It corrects one or two inadvertent errors in the numbers of constituency Members. One or two constituencies that should have had two Members were shown as having one, while some which should have been shown as having one were shown as having two. I hope that the position is now satisfactory. I beg to move.
Lord McCLUSKEY: My Lords, I wish to indicate that we are in agreement with the noble Lord that this is satisfactory as to arithmetic and distribution.
On Question, Amendment agreed to.
Clause 2 [Time of election and term of office of members of Assembly]:
6 p.m.
Lord GRAY Lord GRAY moved Amendment No. 19:
Page 2, line 42, leave out from ("than") to end of line 43 and insert ("the third Tuesday in March in the fourth year following that in which the previous ordinary election was held.").
The noble Lord said: My Lords, I beg to move Amendment No. 19, but first perhaps I should mention that it has just been brought to my attention that
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there is a misprint in the wording of my Amendment— the word "Tuesday" should be "Thursday". On this occasion the mistake may be mine and I do not expect my noble friend Lord Drumalbyn to become involved. I am not at odds with the Government over the purpose and intention of Clause 2(2) to which my Amendment is directed. My point is a technical one. However, I am not just concerned with the niceties of the wording. In my view there is a serious point of substance here and the concern which prompted my Amendment is that I believe that Her Majesty's Government have written far more into Clause 2 than they intended.
In Committee we considered the implications of Clause 2 as regards both its nature and the practical applications of its provisions. Clause 2(2) introduces flexibility into the fixed-term arrangements of subsection (1) of the clause which specifies the normal life-span of the Assembly. At the Committee stage I moved a probing Amendment, and in doing so raised a number of points with the noble Lord, Lord Kirkhill, at which he undertook to have a further look. He and I have corresponded, and the point to which my Amendment is directed is one on which I fear the Government and I are still involved in a difference of opinion.
Perhaps the easiest way to explain what I believe I see in subsection (2) is to direct the attention of noble Lords to the wording of the subsection itself:
"The Secretary of State may, by order made with respect to the second or any subsequent ordinary election of members of the Assembly, appoint as a day for the holding of the election a day not more than two months earlier nor more than two months later than the day on which the election would be held apart from the order."
It might be appropriate if first I were to identify what an ordinary election is. It is clear from the Bill that it is an election due to be held on the date prescribed in Clause 2(1), and whether it is postponed or not, or the date is brought forward or not, it remains an ordinary election. Extraordinary elections are those which occur when the Assembly resolves it shall be dissolved; and, I suppose, also a by-election. I think this is clear in the Bill but the point is important to my argument. We were told that the intention—and I do not disagree—was to permit the Secretary of State to vary one of these

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ordinary election dates in order to cater for any special circumstances that might arise.
We went through all this in Committee and I do not propose to rehearse the various possibilities again, except perhaps to say that when we were discussing whether there was any good reason for having a provision in the subsection to permit the day of the election to be brought forward, I had not then appreciated, and I do not know whether other noble Lords had appreciated, that one particular application of that power would be that where an Assembly had dissolved itself, so to speak, under Clause 3, and there was in prospect the election of an Assembly which would serve an unreasonably short period before it fell to be re-elected under the normal term of office, the Secretary of State could not only make use of the powers in Clause 3 whereby the election following the special dissolution does not have to be held for two months; he could also advance the date of the ordinary election next following. I do not want to enlarge on this point, but for the sake of argument this would be particularly applicable if the Assembly decided it could not go on and it dissolved in the third week of November. In such case the net result could be that the next proper general election of the Assembly could take place. I believe that the effect under the Bill as it is written is that the minimum shortest life Assembly would be one of 17 weeks.
To return to my previous point, first, I must say that my fundamental point is that I believe that subsection (2) as written contains a power which could provide for repetitive postponements of an Assembly election of two months per postponement or less. To explain how I think this could come about, I should first remind your Lordships of the words at the end of subsection (2)—
"nor more than two months later than the day on which the election would be held apart from the order".
If I may give a hypothetical example, an ordinary election is due to be held on 16th March. The Secretary of State postpones it, say, until 11th May. In doing so he postpones by two months from the day on which the election would have been held apart from the order.
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The election is now fixed by that order for 11th May. Remember it is still an ordinary election, albeit a postponed one. The Secretary of State then makes another order—he does not revoke, he does not amend, he makes another order. That order could only come into operation on the day the old order expired. If he did that, surely that order would become the order which the subsection talks about. In other words, the second order is now the order and the date on which the election would have been held apart from the second order, the order now, is 11th May. It is not easy to explain and I hope I have done so satisfactorily. I believe that there really is a case of dubiety here, and I think that if, in a piece of legislation as important as this, we have the opportunity to get rid of any dubiety which may exist, we should take it.
Perhaps the noble Lord, Lord Kirkhill, when he comes to reply, might be able to relate his principal answer to the answers to the points which I put to him on the last occasion. Broadly speaking, the ones which were particularly relevant to the point I am making today were: first, what was Her Majesty's Government's thinking about the use of the power, with particular reference to the political implications; secondly, whether this subsection would be used to cater for a real emergency situation if it was a purely Scottish emergency, or whether use would be made of existing United Kingdom legislation; and, thirdly, whether he saw any use other than the one to which I have just referred for the power to advance, apart from the general possible reasons.
I take note that my noble friend Lord Ferrers and my noble friend Lord Strathcona have put down Amendment No. 20, which seeks to make the power in this subsection subject to Parliamentary approval. The fact that it is not at the moment served only to heighten my worry, and certainly such an Amendment would go some way to meet my fears. But I think we ought seriously to consider whether I do not have a point here. I beg to move.
Viscount COLVILLE of CULROSS: My Lords, I listened to this debate when it was held at Committee stage; my noble friend Lord Gray has been good enough to let me sec the correspondence that he

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has had; and, of course, I have now had the advantage of hearing his explanation again. I would venture to add my support to what he says with a few extra words. I know very well that the Government look upon this as being a very simple and minor matter whereby there is to be only one opportunity to advance or retard the date of the election, and that they do not intend, and certainly would not themselves sanction, a succession of orders—which would, of course, in practice, have to he orders postponing an election. So minor do they consider it to be that, as we heard on the Wales Bill yesterday, the order is not to be subject to any Parliamentary procedure at all; and that, as my noble friend has said, is the subject of the next Amendment. But the analysis that my noble friend Lord Gray has carried out seems to me to enable the Government, the Secretary of State, to have successive orders, and I wonder whether I could very briefly explain the way that I, as a lawyer, look at it.
There is a provision in Clause 77(2) of the Bill whereby, expressly,
"Any order … may be varied or revoked by a subsequent order …".
So we have a situation here in which, on its face, a Clause 2(2) order might be varied or revoked. Let us take my noble friend's dates, which are in fact the dates which work for Thursdays this year. Suppose the original date was 16th March and the Secretary of State makes an order postponing until 11th May. Now that order stands; and if one looks at subsection (2) one sees that there are two references to an order: at the beginning, in the first line, "by order made", and then, at the very end, "the day on which the election would be held apart from the order". I think there is no construction of that subsection which enables one to read it as referring to other than the same order at both ends. The order is made naming a day which is later than what would happen apart from that order—that order which is now being made.
Now suppose the first order is made setting 11th May and then another order is made which does not revoke the original order but varies it. It is a new order, but it varies the previous order; and it varies the date in the previous order from 11th May to 6th July. It could be done another way, by not revoking the first order until
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a day after the second order had come into effect. It does not matter which way it is done: the two have the same effect. When the second order comes into effect, the day on which the election would be held apart from that second order is 11th May, and there is no other way in which one can construe this subsection. Since, then, you are able to add a further two months' delay, you are bound to be able to go over to the 6th July and so on and so on as long as you like—and under the Bill as it stands there is no Parliamentary sanction at all to these orders. Now I know that it is not what the Government intend, but I cannot see what is wrong with that interpretation of the subsection, which indeed is the same as that which my noble friend Lord Gray has spelt out. Could not the Government see their way to clarifying this? Because it really is something upon which I think serious argument can ensue, and it is something which it is so simple to put right.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): My Lords, let me first of all sympathise with the noble Lord, Lord Gray, in his difficulty this afternoon. I can certainly assure him that all his words were very clearly audible to us on this side of the House. I must indicate a note of surprise on my part, however, that he himself did not notice a misprint in his Amendment. I find this quite out of character with his usual very close and careful detailed work on any part of a Bill in which he is involved.
Perhaps I could at the outset indicate the Government position regarding what one might call the subsidiary points which were spoken of in Committee but which, I quite agree, were not given that type of clarity of reply to which I think the noble Lord, Lord Gray, was fully entitled. If I can talk first of all about the question of emergency powers, the Scottish Assembly elections could be postponed in a national emergency or in a purely Scottish emergency. I think that under the sovereign powers which obtain Parliament could legislate as quickly as was necessary to meet the demands of the situation; and this clearly could extend to such matters as the postponement of Scottish Assembly elections if this was considered to be appropriate.

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On the rather wider point of the question of the advancement of an election date by two months, and perhaps the political undertones on overtones which such an advancement might occasion, it is the Government's view that it is prudent to have a provision allowing the date of Assembly elections to be brought forward. It cannot be said that circumstances would never arise when this would not be of value. The provision does not lend itself to abuse for political purposes, in my view. This, principally, is the reason why the period of two months has been selected. I do not think that the provision can do any positive harm. I take the view that on the basis that there might be a need for it, it is probably better to have it in the Bill than that it be left out.
It follows that a period of flexibility is desirable, given the position which I am outlining, and that is why Clause 2(2) is in the Bill. I accept that the choice of the period of two months is really a matter of judgment. I do not think that I can say more than that. The Government position is that it is not so short as to be of no practical advantage and, certainly, not long enough, in the Government's view, to he of distinct political advantage; nor could it be used in that way. So I think there is a line to be drawn; and the Government's judgment is there at two months. I think it is fair to say that it is not an unreasonable assumption that the Secretary of State will exercise these powers in a well known and well understood manner and, I would consider, only after consultation with the Scottish Administration.
My Lords, coming to the substance of the Amendment of the noble Lord, Lord Gray, I would say that I quite see that the purpose behind the Amendment is to make clear on the face of the Bill that the Secretary of State has the power to alter the date of an Assembly election by only two months either way, and not to postpone the election for a longer period by making a succession of delaying orders. The noble Viscount, Lord Colville of Culross, has, in verbal imagery of a definite character, sketched out a hypothetical situation which he can see occurring. The Government agree with the noble Lord, Lord Gray, that the Secretary of State should not be allowed to alter the date of an Assembly election by more than two months. We
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do not agree, however, that Clause 2, as it stands, would enable the Secretary of State to do anything other than this, despite the very recent comments of the noble Viscount, Lord Colville of Culross.
The noble Lord, Lord Gray, fairly, at Committee, indicated his line of argument. He was explicit and he has repeated it this afternoon. The Government do not accept the interpretation which Lord Gray places on the clause. Neither do they accept the interpretation which the noble Viscount has put on the clause. Let me explain. If the Secretary of State wished, for any reason, to change further the date of an ordinary election which he had already postponed by an order under Clause 2(2), he would need either to vary or revoke the first order he had made. If he varied that order, the order identified in Clause 2(2) would still be the original order and, under the requirements of Clause 2(2), such an order could only change the date of an election to a new date within two months of the date specified in Clause 2(1). If the Secretary of State revoked his original order, any replacement order would become the only order to which Clause 2(2) could apply. That order, again, could only provide for an election date within two months of the date in Clause 2(1). In the Government's view, Clause 2(2) does not, therefore, in the form in which it now appears in the Bill, offer any scope whatever for the indefinite postponement of the election date.
Viscount COLVILLE of CULROSS: My Lords, the noble Lord has not entirely grasped the second point I made. I can go along to some extent with him on the variation, but if we have a second order that revokes the first order, the second order can be brought into effect on Day 1 but it does not have to revoke instantly the original order. I should have thought that it could have revoked the original order after it came into effect so that upon its coming into effect there are two orders; and the order which supersedes the second order then relates to a two-month postponement from the date of the first order. That is the situation I see as being possible, and that is the real threat which we have to guard against.
Lord KIRKHILL: My Lords, I see the point which the noble Viscount puts

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to me and, off the cuff, standing at this Box, it appears a not unreasonable proposition. On the other hand, I am a layman in a matter of this kind and it is in conflict with the professional advice that I have before me. I can certainly examine what the noble Viscount says. I shall need to do that in consultation with the draftsman, but it is not in line with the position which is outlined to me on the basis of the professional advice open to the Government.
I might make one further point to the noble Lord, Lord Gray. If the Secretary of State does not vary, amend or revoke the first order—and the noble Lord touched on this point—then the election will take place on the basis of that first order. I was going to say therefore that perhaps the noble Lord's example fell down at that point. I make no great issue of it.
6.28 p.m.
Earl FERRERS: My Lords, the noble Lord, Lord Kirkhill, understandably has sought to justify the Government's interpretation of the words in the Bill; that is a very reasonable thing to do. There is, obviously, an element of doubt: the Government think one thing and some noble Lords think another. What this Amendment seeks to do is merely to clarify beyond peradventure what the Government are intending. I wonder whether the Government do not feel able to accept my noble friend's Amendment. It does not alter the substance of the Bill or the intention of the Government, but it removes the possibility, small though it may be, that the Bill as drafted permits that which the Government do not intend.
I should have thought that if the noble Lord, Lord Kirkhill, were to accept this Amendment we should be on parity with him; and I should have thought that if he were to accept it and if, having taken advice on it afterwards—and I see the difficulty that the Amendment was constructed differently from what my noble friend intended by having the Tuesday and Thursday change—it was found to be intolerable, it would be possible always to remove it at a later stage. I should have thought that this merely seeks to clarify the Government's intention.
The Earl of PERTH: My Lords, I have listened to what has been said by noble Lords who have spoken. I must say that I am not sure that I fully understand it all but I am concerned at the anxiety of the noble Lord, Lord Gray, and the noble Viscount, Lord Colville of Culross. It seems to me that the Government should think very carefully about this. It is all very well to say that they have to accept the advice that they have received; but that advice could be wrong. I would have hoped, therefore, that they would consider very carefully whether they should not accept the Amendment, even if it meant, after further thought, that at Third Reading they were to introduce a further Amendment to cancel what they may accept at the present time.
Lord TANLAW: My Lords, we did not see too many difficulties with this Amendment. Perhaps the noble Viscount, Lord Colville of Culross, could clarify the position, but it would appear that there is not much chance of a second order taking effect because under Clause 3(1)(a) the Assembly would appear to stand dissolved the day before an ordinary election. Therefore we did not worry unduly about the effects of some dictatorial Secretary of State re-electing or postponing an election indefinitely. We noticed, in spite of the misprint, that the noble Lord, Lord Gray, had chosen what appeared to be the Ides of March as the date for a Secretary of State to deal with this matter. He is obviously taking no chances. Perhaps the Government will look at this if the interpretation which has been given by the noble Viscount is one that is valid.
Lord KIRKHILL: My Lords, with the leave of the House, for I have already spoken, I am advised that the fallacy—if that is not too strong a word —lies in seeing each successive order as an order in its own right. That is "the order" in Clause 2(2). I am advised that this is not so. What one has is an order under Clause 2(2) which is constantly being amended. It is "the order". The amending orders are independent orders and I am advised that the Government therefore would stand on their point of interpretation and do not regard Lord Gray's Amendment as being necessary.
Lord GRAY: My Lords, I first should like to thank the noble Lord, Lord

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Kirkhill, for his kind opening remarks. I readily accept his gentle chiding about my not noticing a flaw in my own Amendment. I should also like to thank my noble friend Lord Colville very much indeed. I am certain that the entire House, along with me, wished that he had spoken first, not merely because I displayed a certain lack of understanding about order-making procedures, but because he put my case so much more clearly and explicitly than I managed to do. May I also thank my noble friend Lord Ferrers and the noble Earl, Lord Perth, for their support. I gratefully acknowledge Lord Kirk hill's dealing with the subsidiary points.
Now I suppose I must turn to my principal point and the decision which I have to make. I am not a lawyer and I am not qualified to pass judgment on the Government's reaction to the points made by my noble friend Lord Colville. I wondered at one moment whether I was going to hear from the noble Lord, Lord Kirkhill an expression of willingness to think again. I know about the procedural difficulties at this stage of a Bill; but I had thought that, if I were to withdraw now and there was something in the additional arguments which have been deployed today, it would have been open to Her Majesty's Government to correct the matter when we reach Third Reading if they came to agree with my point of view.
I shall have some comfort to draw on if the next Amendment in the name of my noble friend Lord Ferrers is passed, because then we shall have Parliamentary control. But, when we are considering the point I have made in regard to the Bill as it now stands, I am concerned that Her Majesty's Government have not been more responsive before they let loose this provision without the benefit of Parliamentary control. I do not know whether I am in order in asking this, but is the noble Lord, Lord Kirkhill, permitted to seek the leave of the House to indicate whether he would consider putting matters right if the Government are convinced by the case made this afternoon?
Lord KIRKHILL: My Lords, with the leave of the House, the Governments' position is as I have been attempting to outline it in detail. The Government do not consider Lord Gray's Amendment to be necessary.
Lord GRAY: My Lords, we have had a long discussion on this Amendment. This is not a matter of great principle underlying the Bill, and I do not think it would be appropriate for me in my position on these Back Benches to divide the House on it. Having put forward a case which I thought would help the Government secure their intentions, I have no alternative in the face of what has been said but to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.37 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 20:
Page 3, line 5, leave out from beginning to ("be") and insert ("No order under this section shall").
The noble Earl said: My Lords, this is a return to an Amendment which I moved at the Committee stage and which I invited the noble Lord, Lord Kirkhill, to consider further. To be fair, the noble Lord did not say he would consider it further; but I did. I did not consider that the noble Lord's arguments which were then deployed were particularly impressive. I understand that the noble and learned Lord, Lord McCluskey, is to reply. He has been very heplful with earlier Amendments moved by my noble friend Lord Drumalbyn and perhaps he would consider the inclusion of this Amendment in the Bill.
The Secretary of State can appoint the day when the first ordinary election to the Assembly will take place. This has to be confirmed by a Resolution approved by both Houses of Parliament under subsection (4) of this clause. Subsequent ordinary elections, though, are fixed under subsection (1) of this clause to be held on the third Thursday in March in the fourth year following that in which the previous ordinary election was held. That is all right; everyone knows exactly where they stand. But in subsection (2) the Secretary of State is given power to move the date of the second or subsequent ordinary election by two months, either forwards or backwards; in other words, he has been given four months' discretion and is accountable to nobody for it.
Elections are highly political affairs. They are the essence of politics. Indeed, they happen to be a very topical subject

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just at the moment when everyone is talking about a General Election and what day the Prime Minister will choose for a General Election. This is a highly political decision. Everyone knows that the choice of a date is critical to the outcome of any General Election. The choice of one date might return one kind of Government; the choice of another might return a different one. I do not believe that there is any reason to think that the elections to the Scottish Assembly will be any different. Of course, they will not. They will be highly political.
The Government have said that in order that people may know exactly where they are they will fix the date by Statute. That is in the Bill, and it fixes on the third Thursday in March in the fourth year following the previous ordinary election. But they then put into the hands of the Secretary of State the highly political weapon of the right to change and indeed choose the date within a four months' discretion.
I readily recognise that there must be some provision for changing the date. It might well coincide with a General Election, the death of a Monarch or a number of other reasons which would make the holding of an election on that particular date inopportune. There might well be other reasons far less plausible for an alternative date for an election, such as Party political advantage for one side or another. That could apply to any Party. What if the Secretary of State belonged to one Party and the majority in the Assembly belonged to another Party, and the Secretary of State decided to alter the date? I believe that to ensure so far as possible total rectitude on such an important and powerful provision as the right to change the date of an election, it should be subject to Parliamentary approval.
In no way does this change the substance of the Bill. It is a tidying mechanism and I believe it is one which is right and fair; indeed, it is one which your Lordships considered yesterday to be appropriate for the Wales Bill. It would help to meet the point of my noble friend Lord Gray; for, although the Government say there is no intention—and I accept what they say—by Secretaries of State in the present Administration to prolong the orders altering the date of an election, if this were in the Bill, if any
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future, less scrupulous, Secretary of State were to do that, it would be subject to Parliamentary approval. It is a simple Amendment and I hope that the noble and learned Lord, Lord McCluskey, will be in the affable state of mind in which he was just a few minutes earlier and will find it appropriate to approve this Amendment. I beg to move.
Lord GLENKINGLAS: My Lords, I should like to support my noble friend on this particular point, very shortly, as is my wont. We have all seen over a considerable number of years the tremendous temptations which come to Prime Ministers when it comes to choose dates for elections. It is probably the most important political decision that a Prime Minister takes. When it comes to a period of four months, there are many things which four months will safely get over. I take just one: the decision of the Boundary Commission about altering the boundaries. It is not so long since our present Prime Minister decided to ignore that in favour of an Election. So I feel very strongly that there may be excellent reasons—indeed the best reasons in the world—for altering the date of an election by two months one way or the other; but whoever does it, should be made to stand up in Parliament and explain why he has done it and to get approval. He may well get approval in the Lobbies, but he may also get a certain number of home truths from the Back-Benchers opposite.
Lord McCLUSKEY: My Lords, I feel that this Amendment and the remarks made in support of it give this provision a prominence which it hardly deserves. As my noble friend Lord Kirkhill explained when we dealt with this matter in Committee, it is very much a matter of administrative convenience which was planned for when the provision was put into the Bill. In the Government's view, we should not be justified in seeking to use Parliamentary time in order to gain approval for the appropriate order.
The Government agree, and the Bill so provides, that the order fixing the date of the first election should be subject to Affirmative Resolution; but the ministerial power to make an order varying the standard election date by up to two months either way is a simple executive power

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which is only likely to be exercised in known and understood circumstances and, in all probability, after due consultation with the Scottish Assembly. The basic argument is that, in the Government's view, as this is simply an administrative matter we should not be justified in requiring Parliament to have to consider this matter if it came forward.
I accept that the Amendment has this merit: it would largely render unnecessary Amendment No. 19 which we have just been discussing. The matter is not one of great principle, but it was voted upon by the Committee last night and I would just advance this argument: I believe that the real control here is a political control. If the Secretary of State were to behave in the fashion in which the noble Earl does not expect him to behave and seek to gain political advantage, that would become instantly obvious and there would be political control of that because it would be known in Scotland and in Parliament. The matter could be raised in Parliament, not necessarily in the way the noble Earl envisages in his Amendment, but it could be raised by Question and Answer and perhaps in an Adjournment Debate. It might be raised as a matter of urgency requiring debate in another place. I would feel that these controls are quite enough, and for those reasons the Government are not prepared to accept this Amendment.
Earl FERRERS: My Lords, I am sorry that the noble and learned Lord should have tarnished his nice record of acceptances this evening. I am bound to
say that I find his arguments extraordinary. He said this is a matter of administrative convenience. How can he possibly say that the choosing of the date of an election is a matter of administrative convenience? It is a highly political exercise. The noble and learned Lord gave the Amendment one merit; he said it would render my noble friend's Amendment unnecessary. I fancied that was a by-product of this Amendment. I thought it had substantial merits other than that.
The noble and learned Lord said that if the Secretary of State were to behave in such a shocking and disreputable way, which none of us expects, there would be a row; there would be Questions in Parliament and there would be a debate in I Parliament. That is perfectly true. There could be all those things, but what could Parliament do about it? Nothing. That is the reason why, with the greatest of respect to the noble and learned Lord, there is a difference of opinion. This is not an administrative matter; it is something which ought to be subject to an Affirmative Resolution, and if everything is perfectly known and if the circumstances were understood, to paraphrase the words used by the noble and learned Lord, no Parliamentary time would be taken up. I consider this to be an important Amendment and I hope that your Lordships will agree with it.
6.47 p.m.
On Question, Whether the said Amendment (No. 20) shall be agreed to?
Their Lordships divided: Contents, 90; Not-Contents, 60.

CONTENTS

Alexander of Tunis, E.

Cork and Orrery, E.

Gainford, L.

Amherst of Hackney, L.

Cottesloe, L.

Gisborough, L.

Ampthill, L.

Craigmyle, L.

Glasgow, E.

Auckland, L.

Crathorne, L.

Glenkinglas, L.

Balerno, L.

Croft, L.

Gowrie, E.

Belstead, L.

Cullen of Ashbourne, L.

Gray, L.

Blake, L.

Denham, L. [Teller.]

Greenway, L.

Bledisloe, V.

Dundee, E.

Hanworth, V.

Broadbridge, L.

Ellenborough, L.

Harmar-Nicholls, L.

Brougham and Vaux, L.

Elles, B.

Home of the Hirsel, L.

Campbell of Croy, L.

Elliot of Harwood, B.

Hylton, L.

Carr of Hadley, L.

Elton, L.

Hylton-Foster, B.

Carrington, L.

Faithfull, B.

Killearn, L.

Cathcart, E.

Falkland, V.

Kilmany, L.

Clifford of Chudleigh, L.

Ferrers, E.

Kilmarnock, L.

Cockfield, L.

Ferrier, L.

Kings Norton, L.

Colville of Culross, V.

Forbes, L.

Kinloss, Ly.

Colwyn, L.

Fortescue, E.

Kinross, L.

Lauderdale, E.

Nugent of Guildford, L.

Strathclyde, L.

Linlithgow, M.

O'Hagan, L.

Stuart of Findhorn, V.

Long, V.

Orr-Ewing, L.

Sudeley, L.

Lyell, L.

Perth, E.

Swinfen, L.

Mancroft, L.

Platt, L.

Torphichen, L.

Margadale, L.

Rathcreedan, L.

Trefgarne, L.

Masham of Ilton, B.

Redesdale, L.

Tweeddale, M.

Middleton, L.

Romney, E.

Vernon, L.

Minto, E.

Sandys, L.

Vickers, B.

Monson, L.

Selkirk, E.

Ward of North Tyneside, B.

Montgomery of Alamein, V.

Skelmersdale, L.

Wilson of Langside, L.

Mottistone, L.

Somers, L.

Mowbray and Stourton, L. [Teller.]

NOT-CONTENTS

Avebury, L.

Harris of Greenwich, L.

Ritchie-Calder, L.

Banks, L.

Hatch of Lusby, L.

Seear, B.

Birk, B.

Henderson, L.

Segal, L.

Blyton, L.

Houghton of Sowerby, L.

Simon, V.

Boston of Faversham, L.

Hughes, L.

Stedman, B.

Brockway, L.

Janner, L.

Stewart of Alvechurch, B.

Brown, L.

Kaldor, L.

Stone, L.

Collison, L.

Kirkhill, L.

Strabolgi, L. [Teller.]

David, B.

Lee of Newton, L.

Tanlaw, L.

Davies of Leek, L.

Llewelyn-Davies of Hastoe, B.

Taylor of Blackburn, L.

Davies of Penrhys, L.

Lloyd of Kilgerran, L.

Thomson of Monifieth, L.

Diamond, L.

Lovell-Davis, L.

Thurso, V.

Donaldson of Kingsbridge, L.

McCarthy, L.

Vaizey, L.

Evans of Claughton, L.

McCluskey, L.

Wall, L.

Gaitskell, B.

McGregor of Durris, L.

Wallace of Coslany, L.

Glenamara, L.

Norwich, V.

Wells-Pestell, L.

Gordon-Walker, L.

Oram, L.

White, B.

Gregson, L.

Pargiter, L.

Willis, L.

Hale, L.

Parry, L.

Winstanley, L.

Hampton, L.

Peart, L. (L. Privy Seal.)

Winterbottom, L. [Teller.]

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
Clause 3 [Dissolution of Assembly]:
6.56 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 21:
Page 3, line 9, leave out ("stand") and insert ("be").
The noble Earl said: My Lords, Amendments Nos. 21 and 22 go together and perhaps I may speak to the two. The substance of these Amendments is the same as that which I moved in Committee. It is an extraordinarily simple matter which, for some remarkable reason, escaped on the previous occasion the comprehension of the combined talents of all those Members of the Government Front Bench, and that is a considerable fund of talent. So I thought that I would try again, because this is really a question of drafting.
The Bill states that the Assembly,
"shall stand dissolved on the eve of an ordinary election".
The "eve" means the day before. The Bill does not say that the Assembly shall be dissolved on the eve of a General
Election; it says that it shall "stand dissolved". It is my belief that the Government intend, as the Bill is drafted, that, as the election is on the Thursday and the eve of the election will be the Wednesday, the Assembly shall stand dissolved on the Wednesday. Therefore, it will have to be dissolved on the day before, in order that it shall be in a state of dissolution on the Wednesday.
If I have misread the Government's intentions, and they intend that the Assembly shall be dissolved on the eve of the election, then, with respect, the Bill does not say so; it says that it "shall stand dissolved". My Amendments are for clarification and for drafting, because if it is the intention that the Assembly shall be in a state of dissolution on the Wednesday, then it will have to be dissolved on the day before the eve of the election. I beg to move.
Lord KIRKHILL: My Lords, the obfuscation still obtains on this side of the Dispatch Box, despite the very clear exposition of his case which the noble Earl, Lord Ferrers, has just made before your Lordships. In presenting his Amendments, to which I respond at this

1307
stage, he has suggested that they would remove the existing doubt or ambiguity that exists in the provision as it stands. I gather that that is the major point. As amended, Clause 3(1)(a) would read that the Assembly,
"… shall be dissolved no later than the day before the eve of an ordinary election of members".
This surely produces a result that contains many more doubts and ambiguities than does the existing provision.
The new formula postulates that someone will dissolve the Assembly, but who is the someone to be? The Bill gives the Assembly no powers in this respect; dissolution is effected by Parliament itself through the provisions of Clause 3(1)(a), as it stands. The provisions in the Bill are quite clear. They provide that the Scottish Assembly will have continuity right up to the date of the next election. Under the Amendment, a special date for dissolution would have to be fixed by someone, and the Amendment provides no limitation on this period. I agree it might be that no great harm would result if such a period occurred, but the Government's preference is for continuity. We discussed this in Committee, and I agree that I failed to take at least one of the points which the noble Earl put to me. We have looked at the matter again, but the Government consider that they should adhere to their original preference, and they intend so to do.
Earl FERRERS: "Obfuscations" is a lovely word and one with which I feel in sympathy with the noble Lord because, if one can be so, I am now obfuscated. I understood that if an Assembly is to stand dissolved on the eve of an election it must be in a state of dissolution. I accept what the noble Lord, Lord Kirkhill, says: that there is no process through which one has to go in order to dissolve an Assembly; it just dissolves itself. But then the noble Lord said that it is the Government's intention that the Assembly shall sit right up to the time of a new election. If that is so, it cannot stand dissolved on the eve of the election, because it must sit or be in operation on the eve of the election, in order to run up to the date upon which the election is being taken.
There are, therefore, two points. First, if my understanding of the noble Lord's
1308
argument is right—that the Assembly should run up to the date on which the election takes place—then it cannot possibly stand dissolved on the eve of the election. If, on the other hand, it is intended that the Assembly should stand dissolved, then it must go into a state of dissolution between the Tuesday night and the Wednesday morning, at midnight. I do not know how we are going to clarify this, because the noble Lord is gagged by the rules of procedure at Report stage and cannot speak again, unless he has leave to do so. Perhaps the House would be kind enough to give that leave to the noble Lord. I will ask him one simple question, which perhaps he can answer. May I ask the noble Lord whether on the day before, on the Wednesday, the Assembly is to be in a state of session, or in a state of dissolution, or both?
Lord KIRKHILL: My Lords, by leave of the House, may I say that certainly it would be in a state of grace. To try to clarify this point, the Government do not envisage great difficulty over the use of the phrase "on the eve of", nor do we envisage any real difficulty about construing these words. To answer directly the noble Earl's point, the Assembly will come to an end on the stroke of midnight immediately before election day, just as Parliament itself can do under the Centennial Act 1715.
Lord HARMAR-NICHOLLS: My Lords, does not this lead to a little confusion? Are the Government admitting that this Assembly will be a Parliament? Parliament, we know, can be dissolved but the Government continue; they carry on with their Seals of Office and therefore there is continuity of Government by the Executive. Since, however, this Bill does not divide the Assembly from the Executive there is an uncertainty which certainly ought to be resolved.
Because of my suspicions about what will flow from the Bill if it becomes an Act, what bothers me is that it looks as though it is envisaged that it will not be an Assembly to look after a minority of things devolved to it; it will be looked upon as a Government. Eventually there will he a Prime Minister, with an Executive which carries on until after the election. It is a confusion, but it may well be a Freudian kind of indication that this

1309
matter is not so innocent and so minor as its presentation indicates. It has every indication that it will grow into something which is separate; there will be a separate country. What bothers many of us is that this is the beginning of a separation which is much wider, deeper and more dangerous than the honeyed words which Ministers speak from time to time from the Dispatch Box.
Lord CAMPBELL of CROY: My Lords, from what the noble Lord, Lord Kirkhill, said, it still seems strange, to put it at its lowest, that the Assembly stands dissolved on a Wednesday but still operates until midnight on that night. I know that this may seem to be a small point, but it is the kind of point which we really must try to get right, otherwise later it will cause confusion and argument when the Assembly is in existence.
If the position is that the Assembly stands dissolved at 23.59 hours, then it is possible, even though there is only a minute of it, for the Assembly to stand dissolved for the one minute of the Wednesday. However, there is confusion here, and later on it could cause difficulty unless it is cleared up. Therefore, may I again ask the noble Lord to explain how this Assembly stands dissolved on a Wednesday but is still in existence until midnight that night.
Lord KIRKHILL: My Lords, by leave of the House, I must say—again I am almost getting involved in a Committee debate, and I apologise to noble Lords; however, I have been asked a direct question —I can see no difficulty in the Assembly, by some notice of Motion, since Members will want to be up and away to their constituencies, deciding to dissolve its proceedings at any appropriate time that is convenient to it. But the Assembly will stand dissolved on the eve of the election. I do not envisage that Members of the Assembly will sit to debate matters, as sometimes we do here, until 11.30 on the eve of an election. However, the Assembly can constitutionally be in being until midnight.
Earl FERRERS: My Lords, may I have leave of the House to withdraw the Amendment?
Amendment, by leave, withdrawn.
[Amendment No. 22 not moved.]
Lord WELLS-PESTELL: My Lords, I beg to move that further consideration on Report be now adjourned.

THEATRES TRUST (SCOTLAND) BILL
7.8 p.m.
Lord HARMAR-NICHOLLS: My Lords, I beg to move that this Bill be now read a second time. As will have been gathered from a speech which I made earlier this afternoon, I always want to be very generous to Scotland, and that is what the Bill which I am now submitting to your Lordships for Second Reading is intended to be. It is a Bill which extends to Scotland the benefits which will flow from a Theatres Trust which was set up in England in 1976 and which has since proved to be very helpful indeed to the possible preservation of the live theatre in England. Scotland was not included in the English Bill, which noble Lords may remember I piloted through its Second Reading on 27th May 1976. All the arguments that I presented thou as to the merits of the Bill are identical. It is merely being extended to apply to Scotland, since Scotland was not included in the previous Bill.
Briefly, this Bill is designed to make it more difficult for anybody to add to the removal of the existing live theatre by demolishing a theatre, by radically changing its nature or by making it in any way unsuitable for live theatre. Under the Bill, such a change would have to be examined by the Theatres Trust which has been set up by the Secretary of State for Education and Science. Before any planning authority could agree to any application for change of user that appeared to injure the property continuing to be used as a live theatre, it would have to obtain the approval of this trust. If the trust could show that there was a need for it to continue as a theatre and if after a reasonable time nobody else would provide the finance for it to continue as a theatre, then the trust would be expected to give

1311
a lead in finding that finance. If they could not find the finance it would go back again to the normal planning procedures. But this is an extra point of preservation that has been put into the normal planning procedures in order to make it even more difficult than it is now that live theatres should be reduced in number.
I do not think there is any need to extol the necessity for preserving the live theatre. From every point of view it is a very desirable part of our social life and indeed it is a valuable part of our economic existence, too. There is the income it produces from tourism. The leadership which we are giving the world by producing and presenting plays and sending them on tour throughout the world produces a considerable income. We have noted with sorrow that over recent years because of general inflation we have seen the live theatre being reduced in many areas and at a time when perhaps it is more necessary than ever.
This is a minor Bill in terms of the extra powers which are being given, but the good that can flow from those powers is far from minor: it is major and it can be very helpful indeed. So far as England is concerned the Act seems to be working well and to some effect, and in the light of that it was felt desirable to extend the same facilities for preservation to Scotland. I noted with interest that the sponsors of the Bill in another place came from all Parties, including the Scottish Nationalists. Everyone recognises that this is a matter which is outside the field of political controversy. It is a matter of preserving something that belongs to us all, of whatever political colour, and everyone wants to do everything possible to preserve the economic, social and cultural benefits which come from preserving the live theatre.
We are leaders in the world. Indeed, if I am asked today what are the things in which we still excel above all others in the world I think there are only two that we can refer to with all honesty: the one is our Monarchy—and many people are envious of the way that works—and the other is the theatre. We are the leaders in the world so far as the live theatre is concerned. It is a valuable and desirable position to hold, and it is because this
1312
Bill, in its small way, is likely to allow that to continue that I commend it to your Lordships with all confidence and ask you to give it a speedy passage. I beg to move that the Bill be now read a second time.
Moved, That the Bill be now read 2ª.—(Lord Harmar-Nicholls.)
7.13 p.m.
Lord KIRK HILL: My Lords, the Government welcome this short but useful Bill, which will provide worthwhile additional safeguards and assistance for the future wellbeing of Scottish theatres. Like its predecessor, which applied to England and Wales only, this Bill does not commit the Government to making any public money available to the Trust, which will continue to raise any money which may be required to give effect to its recommendations.
Under the chairmanship of the noble Lord, Lord Goodman, the Theatres Trust has shown itself to be a responsible and imaginative body, and I am glad that it will shortly be enabled to extend its operations to Scotland. I know that this measure will be welcomed north of the Border by the Scottish Arts Council and by other organisations concerned with the development of the theatre in Scotland. The Government are happy to support such a measure. I am grateful to the honourable Member for Canterbury in another place for his efforts in promoting this legislation, and to the noble Lord, Lord Harmar-Nicholls, for the precise way in which he has explained the provisions of the Bill to this House. He has described the purpose and content of the Bill with great clarity, and I have no wish to add to what he has said about it at this stage.
Lord CAMPBELL of CROY: My Lords, I should like to congratulate my noble friend Lord Harmar-Nicholls doubly—for the Bill which he piloted through in 1976, concerning theatres south of the Border, and now for having completed the operation by carrying out what is clearly a laudable project and bringing before us similar legislation concerning Scotland. I am sure your Lordships will agree with what he has said about the theatre in Britain and about the need, on occasion, for a trust to come in and help

1313
in the way he has described. I am sure that we all owe a debt of gratitude to my noble friend.
On Question, Bill read 2ª, and committed to a Committee of the Whole House.
Lord WELLS-PESTELL: My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.
[The Sitting was suspended from 7.16 p.m. until 8 p.m.]

SCOTLAND BILL
Further considered on Report.
Clause 4 [Elections to Assembly]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 23:
Page 3, line 30, after ("date") insert—
("(i) have their names on such parts of the register of local government electors as relate to the Assembly constituency; and (ii)")
The noble and learned Lord said: My Lords, I beg to move Amendment No. 23 standing in the name of my noble and learned friend the Lord Chancellor. This Amendment seeks to correct a flaw in the Bill which was detected by the noble Lord, Lord Gray, during Committee and which the Government agreed to return to on Report. Clause 4, as it stands, makes it possible for a Peer living in a local government area which straddles two Assembly constituencies to choose in which Assembly constituency to cast his vote.
As was made clear in the Committee debate on this point, there is no possibility of a Peer being able to vote twice because it is the Government's intention in the order made under subsection (3) to attract Section 48 of the Representation of the People Act 1949, which makes plural voting an offence. The Amendment would correct the flaw by providing that Peers who are entitled to vote in any Assembly constituency shall be those who have their name on the parts of the register of local government electors which relate to that Assembly constituency. Before I leave the matter, may I pay tribute to the noble
1314
Lord, Lord Gray, for drawing our attention to this point and enabling us to improve the Bill in this respect. My Lords, I beg to move.
Lord GRAY: My Lords, I should like to thank the Government, and in particular the noble and learned Lord, Lord McCluskey, for having taken this step to meet the point which I made at Committee stage and to which he has referred. I thank him also for the kindly remarks he has made, for the courteous reception he gave to the Amendment at Committee stage and for the helpful letter which in the interval he has written to me. This seems to me to indicate that this Amendment meets the principal point that I made in Committee as nearly as it is possible to meet it in the rather strange circumstances with which we are faced.
Clause 5 [By-elections]:
8.4 p.m.
Lord GRAY Lord GRAY moved Amendment No. 24:
Page 4, line 36, leave out subsection (5).
The noble Lord said: My Lords, I beg to move Amendment No. 24 on behalf of my noble friend, Lord Drumalbyn, who has asked me to apologise for his unavoidable absence from the House this evening. Perhaps it would be convenient to your Lordships if I were also to speak to Amendment No. 25 and to Amendment No. 26A, which is on the additional Amendment List.
The purpose of these Amendments which my noble friend has set down is in part to meet points which were made by my noble friends Lord Campbell of Croy and Lord Tranmire, and also by the noble Lord, Lord Monson, in Committee. They suggested it would be better if there was a separate clause to deal with the method of filling a vacancy in the Assembly caused by the death or withdrawal of an additional Member between elections under the system of proportional representation in the Bill. The noble Lords who drew attention to this point, pointed out that the description of Clause 5 in the rubric, "By-elections", was not appropriate to the filling of vacancies among additional Members, as it is not a question

1315
of election and the vacancy is to be filled by
"the first willing candidate of the party of the vacating Member"
on the electoral region priority list of the same Party at the last election. My noble friend has attempted to meet their wishes by, in effect, transferring Clause 5(5) in the Bill to a new clause and making the necessary amendments to it. My noble friend, I know, feels that it might have been easier to change the rubric to such wording as "Filling vacancies among Members" and dealing with both by-elections and vacancies among additional Members in the same clause. However, he has decided to fall in with the wishes of those who expressed views.
Another purpose is to meet the point which was made by my noble friend Lord Tranmire concerning the date on which the person who fills a vacancy in this way will become a Member of the Assembly. That is the date corresponding to the day on which the person is elected in the by-election. Subsection (2) of the new clause provides that the date shall be the day on which the presiding officer of the Assembly certifies that the relevant standing order relating to the filling of such vacancies for additional Members has been complied with, and that is to be the date on which the term of office of the new Member is to begin.
It is possible, my noble friend has advised me, that the new clause may be criticised on the grounds that it contains no provision corresponding to Clause 5(4), and so gives, some might suggest, an unfair advantage to additional Members over constituency Members. However, my noble friend Lord Drumalbyn feels that it seems reasonable in the case of additional Members to allow the practice of local authorities here, but were strong objections to be taken he has authorised me to say that he would undertake to introduce a subsection corresponding to Clause 5(4) when we get to Third Reading. I beg to move.
Lord McCLUSKEY: My Lords, I think that the Government, like the noble Lord, Lord Drumalbyn, are not entirely convinced that it is essential to split Clause 5 in the way proposed, but other noble Lords thought otherwise and the
1316
Government would not seek to oppose that. Accordingly, this Amendment would not be opposed by me. There is one point that occurs to me when I look at the wording here. It may he quite unfair to ask the noble Lord, Lord Gray, to deal with it at short notice, though I may be quite misguided. It is not unknown for Members of an elected Assembly to change their Party allegiance after they have become Members of the Assembly. If in fact someone decided to cross the floor, being himself one of these additional Members, and changed his Party, and then resigned his seat, would the seat go to the Party which he had left or the Party which he had joined? Perhaps the noble Lord, Lord Gray, thinks that that is a fast ball at this time of night and he may wish to reflect upon it.
Lord GRAY: My Lords, with the leave of the House, I shall certainly reflect upon it or perhaps invite my noble friend Lord Drumalbyn to reflect upon it. Off the cuff, I should have thought that the answer was that it would tie back to the Party because the man came from the particular regional list of that Party. However, it is rather similar to the type of point which I might make myself and I am therefore prepared to allow the noble and learned Lord, Lord McCluskey, the benefit of the doubt on this matter. I beg to move.
Lord McCLUSKEY: My Lords, before the noble Lord, Lord Gray, sits down may I say that he could have paid me no greater compliment!
Lord GRAY Lord GRAY moved Amendment No. 25:
Page 5, line 1, after ("this") insert ("and the next following").
Lord GRAY Lord GRAY moved Amendment No. 26A:
After Clause 5, insert the following new clause—
Filling of vacancies among additional members
(".—(1) Where the seat of an additional member of an Assembly is vacated the vacancy shall be filled by the first willing candidate of the party of the vacating member on the relevant party priority list as prepared at the preceding ordinary election under the provisions of Part V

1317
of Schedule 1 to this Act, such candidate not already being a member and having indicated his willingness to fill the vacancy in such manner as may be required by the standing orders of the Assembly.
(2) A vacancy occurring under this section shall be deemed to have been filled on the day on which the presiding officer certifies that the standing order relating to the filling of such vacancies has been complied with and the member shall be deemed to have been elected on that day.").
Clause 7 [Procedure of Assembly]:
Lord GRAY Lord GRAY moved Amendment No. 27:
Page 5, line 12, at end insert ("and the directions shall include provision for the election of a presiding officer from among the members of the Assembly").
The noble Lord said: My Lords, I am back on my own ground now and I beg to move Amendment No. 27. I believe that it might be of convenience to the House were I also to speak to Amendments Nos. 28 and 75. Noble Lords will find Amendment No. 75 on page 10 of the Marshalled List. It consists of a new clause, although some of the words therein are already in another part of the Bill.
I am concerned with what is to be included in the Standing Orders of the Assembly. By means of my three Amendments, I am seeking to bring together those matters which the Bill specifically says must be included in the Standing Orders. I hope that what I propose is not merely logical but in keeping with the basic format of the Bill as structured by the draftsman. Perhaps it would be best if dealt first with the general character of the change I recommend and then went on to treat the detail of the individual Amendments in so far as it may be necessary for me to do so.
At the top of page 13 of the Bill is the italicised heading, "Standing orders—particular provisions." Under that heading are grouped six clauses, each dealing with a particular provision of Standing Orders that are to be made by the Assembly or, in certain cases, may be made by the Assembly. Regardless of what views one may entertain as to what should or should not be cited in the Bill as subjects for inclusion in the Assembly Standing Orders, there is one subject which the Government themselves stipulate for inclusion that has
1318
strayed from its logical position in the Bill—that is, where one would expect to find it on page 13. The item in question concerns a most important matter—namely, the Assembly's presiding officer.
Clause 7(2) of the Bill contains exactly what one would have expected to find in the part of the Bill which commences on page 13 and to which I have referred. There is no doubt that subsection (2) is what the Bill, at page 13, terms a "particular provision". It is patently so by its very nature. Furthermore, it even opens with the same wording as Clauses 24, 25, 26 and 28, and, with the exception that Clauses 27 and 29 are permissive as opposed to mandatory, the same wording as those clauses also.
Amendments Nos. 27, 28 and 75 seek to place the Standing Order requirement dealing with the Assembly's presiding officer in that part of the Bill which deals with the Standing Orders. I should perhaps explain why we should effect the change in the particular way that my Amendments propose because it might have been more logical to have adopted the format which one finds in the Wales Bill where there is a part of the Bill headed "Conduct of business" and which includes not only the Standing Order provisions, but the provisions which in the Scotland Bill comprise Clauses 6 and 7. I admit to having been tempted to rearrange it in that way. However, although I have not divined—at least I do not think that I have divined—the draftsman's purpose in placing the subject matter of Clauses 6 and 7 on page 5, sandwiched between a clause dealing with by-elections and a clause concerned with disqualification from the Assembly, I am prepared to suppose that there is a reason for referring to the first meeting of the Assembly (Clause 6) and the basic procedure (Clause 7(1)) at the point of the Bill where the draftsman has placed them. On the other hand, I can see no reason for spelling out the particular provision relating to the presiding officer at this point. It certainly has not been done to specify the existence of the presiding officer before a reference is made to him because, in fact, he is already referred to in Clause 5.
I have thought it prudent to extend Clause 7(1) as I suggest in my Amendment No. 27, since it could well be argued that

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the presiding officer is so central to the procedural scheme for the Assembly that it is appropriate that he should be referred to here and that is perhaps particularly so in regard to the directions which the Secretary of State is required to make by Clause 7(1). Amendment No. 28 simply removes subsection (2) from Clause 7, but with Amendment No. 75 I reintroduce that subsection in what I have already argued is the right place for it, on page 13 of the Bill.
Subsection (1) of the new clause proposed by Amendment No. 75 reproduces exactly the words that my Amendment No. 28 removes from their present position in the Bill. Here I have departed from the broad purpose, or the prime purpose, of my scheme, in that in paragraph (b) of my proposed new clause 1 have extended the wording to require that the Standing Orders shall, in fact, also deal with the appointment or election of a deputy presiding officer or deputy presiding officers. I think that this was a reasonable and proper thing to do. Certainly in the context of the other mandatory provisions in the Standing Orders clauses it would seem appropriate as they are comprehensive.
I have in no way sought to lay down in detail anything about what those Standing Orders may say. I think that it rounds out the clause in the appropriate fashion. It is obviously a matter of opinion here. We had considerable discussion in Committee as to how much should be spelled out in the Standing Order clauses. I think that what I suggest here is sensible and would place the provisions to which I have referred in the order, sequence and position in which anyone studying the Bill would expect to find them. I beg to move.
Lord KIRKHILL: My Lords, let me say at once that the Government agree with the spirit, if not the letter, of these Amendments. Perhaps I could direct my remarks initially to Amendments Nos. 27 and 28. We fully accept that the directions which the Secretary of State will give under Clause 7 must include provision for the election of a presiding officer and his tenure of office. The object of the directions is to enable the Assembly to get started on its business; clearly, it cannot properly do this without a presiding
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officer. Therefore, I can give a firm assurance that this point will be covered in the directions; in realistic terms it has to be included. However, we think that it is unnecessary to provide for this specifically in the Bill.
However, the noble Lord, Lord Gray, who kindly indicated to me at an earlier stage in this afternoon's proceedings that he might seek to expand on a number of his points, poses a question which clearly I should answer. Perhaps I might encapsulate the question. It seems to me that he asked why the provision relating to Standing Orders for the presiding officer, found at Clause 7(2), does not appear together with the other Standing Order provisions in Clause 24. The noble Lord himself, of course, acknowledged that essentially this is a matter for the draftsmen. Indeed, there is a question of opinion about this. In practice, of course, a provision has the same effect, no matter where it appears in the Bill.
In this particular case, however, it could be argued that Clause 7 is the correct place for the provision. The Standing Orders relating to the presiding officer are fundamental. The Assembly will not be able to function without a presiding officer and an assurance has already been given that under Clause 7(1) the Secretary of State's direction must and will include arrangements for the presiding officer.
The Standing Orders under Clauses 24 to 29 are of a more general nature and are not a prerequisite to the operation of the Assembly. That is art important difference and one that could be said to justify the present arrangement in the Bill. In other words, the Clause 7 provisions are an essential part of the preliminary arrangements for setting up the Assembly and for providing essential initial arrangements. The general procedures to be covered by Standing Orders are ancillary and for that reason come later in the Bill.
In introducing his Amendment, the noble Lord, Lord Gray—and I agree with him on this—also spoke on Amendments Nos. 28 and 75. In those Amendments he proposes that it should be mandatory that in its Standing Orders the Assembly should make provision for the election of the presiding officer, the election or

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appointment of a deputy presiding officer or officers and for the tenure of office of these officers. We consider it to be essential that the Assembly's Standing Orders should spell out the arrangements for the election of a presiding officer and his tenure of office. This, in fact, is made mandatory by Clause 7(2).
However, the Government cannot accept that it is necessary to make it mandatory for the Assembly to elect or appoint a deputy presiding officer. This is something that the Assembly may well consider to be necessary, but the Government believe that the Assembly should be left to make its own decision on this point. I hope that my explanations will, if not wholly, at least substantially, satisfy the points raised by the noble Lord, Lord Gray.
Earl FERRERS: My Lords, the noble Lord, Lord Kirkhill, has been good enough to explain the difficulties that he sees arising from my noble friend's Amendment. However, I find it rather difficult to understand why, in fact, it is not possible to accept the Amendment which says that Clause 7(2)—which refers to the Standing Orders—should be included in that clause which refers to Standing Orders. It would appear that of all the Amendments, this subsection is one which is extraordinarily out of place, because it refers to Standing Orders; yet Clauses 24, 25 and 26 are headed "Standing orders—particular provisions". One would have thought that that is the obvious place to have something that refers to Standing Orders. I should have thought that in this respect my noble friend's Amendment does not alter the nature of the Bill at all, but simply makes it tidier. I would think that the noble Lord, Lord Kirkhill, would have been able to see his way to putting that in the appropriate clause.
With regard to the other points which my noble friend suggested about the election of the presiding officer and the deputy presiding officer, inevitably the Assembly must elect a deputy presiding officer, because what happens if the presiding officer is ill? If we are going to make Standing Orders, it would seem reasonable that they should allow for a presiding officer and a deputy. I still hope that the noble Lord can see his way
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to agreeing to this, because it would appear to make more sense and make the Bill tidier.
Lord GRAY: My Lords, I am grateful to my noble friend Lord Ferrers for his support in this matter. Before I decide what it would be appropriate for me to do, perhaps I could say to the noble Lord, Lord Kirkhill, that I accept his remark to the effect that he agrees with the spirit of the Amendment. There are certain things in his answer which I find quite surprising. He referred to the business of the appointment of the presiding officer—the words which actually state that Standing Orders shall lay down his appointment—as being (and I do not want to misquote him) a "prerequisite" and also, I think, a "precondition". I believe that that was the sense of what the noble Lord said. He had already told me that the directions of the Secretary of State, whether or not I amend Clause 6, will deal with this matter. That is a precondition to the first meeting of the Assembly; the Secretary of State will have directions that will deal with how the presiding officer is to be elected. The first or second meeting of the Assembly could not take place, presumably, if it had to wait on the making of the Standing Orders, as the Secretary of State will deal with this.
To take up another point made by the noble Lord, Lord Kirkhill, he said that the directions to be made would include this matter. Fair enough. I accept his assurance on that. It is not essential to my scheme that the words which I propose in my Amendment No. 27 are in the Bill. I would be quite happy to go along with the noble Lord's assurance and rest content. As regards Amendment No. 28, quite obviously I feel much more strongly. It is in the wrong place. How is a student of the Bill—someone concerned with the drawing up of the Standing Orders or looking to see what should he there—going to find that particular item, when he has, with the Act, something which tells him that there is something else dealing with Standing Orders, and there is no reference to the presiding officer in that.
As to my Amendment No. 75, of course we have a difference of opinion over this. As I see it, there is nothing odious in my proposal. I have not been more extensive

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in what I suggest than some of the other mandatory provisions which are already in the Bill. No technical objection has been raised to the words that I have employed. It seems quite reasonable, because, as my noble friend Lord Ferrers pointed out, there will have to be deputies of some kind. It is worth considering. We are saying that the Standing Orders of the Assembly shall do such and such. But we are not saying that they shall do such and such, plus something else. The discretion will lie with the Assembly. It will not need to have, as the Bill is worded, any regard to the need for a deputy. Of course, it will, logically, Yes. But perhaps it might adopt a system of which we at Westminster would not approve. I think it is a reasonable and perfectly proper point to put right in the Bill.
In general, I should like to add that the noble Lord, Lord Kirkhill, said "Yes, the draftsman has one opinion and I may have another". I am frequently wrong. I would suggest that draftsmen are perhaps occasionally wrong. Here we have a nonsense. I think that it would help the Bill—its readability and its sense—if we were to do something along these lines. Perhaps the noble Lord, having listened to what I have said, would perhaps seek the leave of the House to indicate to me whether he would have a look at this, because perhaps I have gone rather further than he expected me to do this evening.
Lord KIRK HILL: My Lords, with the leave of the House, the Government's position is that the noble Lord's Amendments have been carefully studied. Essentially it is a drafting matter. My advice is that the Bill should stay as it is. That is the Government's position.
Lord GRAY: My Lords, the Bill will not fold or collapse because these Amendments are made. I think it is very sad that when from time to time noble Lords—not just myself—do bring forward something of this kind, the Government cannot respond, particularly when it is in their own interests. In view of the circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 8 [Disqualification for membership of Assembly]:
8.34 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 29:
Page 5, line 20, at end insert ("(aa) he").
The noble and learned Lord said: My Lords, if it would be convenient to the House I should like to describe the effect of two other Amendments along with Amendment No. 29. They are Amendments Nos. 33 and 34. The first is a paving Amendment for the two later Amendments which are proposed to be made to Clause 9. As it stands, Clause 9 enables the Assembly to grant relief from disqualification if it considers that the ground has been removed and also that it is proper to do so. This might appear to permit the Assembly to grant relief in certain circumstances from any of the grounds listed in Clause 8. If this were so, then the Assembly would appear to have wider powers than are now available to Parliament itself. The Government do not now think that this would be right. The purpose of these Amendments is therefore to restrict the Assembly's power. It will be able to grant relief in proper circumstances, but only where disqualification has arisen through tenure of an office which the holder inadvertently failed to resign in due course. If I might give an example—if a VAT tribunal member wished to stand for the Assembly he could, if elected, resign his appointment as such a member and then be granted relief from disqualification. I am only talking about the inadvertent case, of course, because properly in that kind of case he should resign before he is adopted as a candidate.
The categories of disqualification that these Amendments explicitly remove from the Assembly's ambit of relief are, first, common law disqualifications from the House of Commons other than those arising from the holding of the offices listed in the House of Commons Disqualification Act 1975; and second, those arising from crimes for which the person has been sentenced to a prison sentence within the last five years. In practice it would rarely have been possible for the Assembly to grant relief from these disqualifications, since the ground for their imposition can never be removed. The common law disqualifications arising from, say, treason

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remain valid for life. Similarly, it is a matter of fact whether a prison sentence of at least three months without the option of a fine has been imposed within the last five years: there can be no question of the ground being removed in that case either. Nevertheless, on reconsidering this clause the Government concluded that as it stands it could be misleading and might convey the impression that there is some way of removing grounds that are inherently unremovable. These Amendments seek to put the position beyond doubt. I beg to move Amendment No. 29.
8.38 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 30:
Page 5, line 27, after ("(d)") insert ("subject to the Rehabilitation of Offenders Act 1974,")
The noble Lord said: My Lords, when we were discussing Clause 8 in Committee I raised the question of disqualification and whether this fitted in, where crime had been committed, with the rehabilitation of offenders legislation. The noble and learned Lord, Lord McCluskey, agreed that it should fit in with that legislation, but he undertook to look into this somewhat complicated matter.
To remind your Lordships very briefly of what the rehabilitation of offenders legislation does, the Act of 1974 arranges for certain categories of offences officially to be forgotten after a certain period. This is done in order to help people to "go straight", or to clear their past and start afresh. I pointed out that under the wording of the Bill a period of eight to nine years of someone's past might be involved, whereas in the Rehabilitation of Offenders Act it appeared that five years was the normal period. Therefore, there seemed to be an inconsistency. The reason for my pointing out eight to nine years is that five years elapse before an election; but then of course up to another four years may elapse before the next election takes place, and during that period somebody might be challenged about whether they were disqualified because of some offence that had been committed during the five years before the election.
In the subsequent correspondence the noble and learned Lord has written to me
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and to the effect that he has had the matter re-examined and has come to the view that the present position is not satisfactory. It might in exceptional circumstances result in a person being disqualified from membership of the Assembly for more than five years. I put down this Amendment in order that the matter should be raised again, as otherwise at Report stage there would be no opportunity to discuss it. I now see that there are two Amendments, Nos. 31 and 32, in the name of the Lord Chancellor, which I suppose are the Amendments which constitute what the noble and learned Lord, Lord McCluskey, thinks is necessary. Certainly Amendments Nos. 31 and 32 look to me as though they carry out the task. I hope that the noble and learned Lord in replying to me will be able to tell me that these two Amendments make sure that the Bill is consistent with the Rehabilitation of Offenders Act 1974, in which case I shall be quite happy to withdraw my Amendment. I beg to move.
8.42 p.m.
Lord McCLUSKEY: My Lords, the noble Lord, Lord Campbell of Croy, has stated the history of this matter. May I just acknowledge with gratitude his contribution here because we recognise that the point is a real one. As I wrote to him, the Government considered the matter, and that is the reason why Amendments Nos. 31 and 32 appear on the Marshalled List. I am also happy to hear him say that he believes the Government Amendments carry out the task, and I hope to persuade the House that they do. Indeed, I believe that the Government Amendments sit happily beside the Rehabilitation of Offenders Act 1974, and no express dovetailing provision is required. Section 7(1)(d) preserves the operation of any enactment imposing any disqualification, the period of which extends beyond the applicable rehabilitation period. As the minimum rehabilitation period laid down by Table A in Section 5(2) of the Act is five years, there is no conflict with Clause 8 which will likewise be in terms of five years.

May I just mention Amendments Nos. 31 and 32, as I have been invited to do so, and it is convenient to do so at this stage and take them together. We looked into this matter. We concluded that the

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provision as contained in the Bill could indeed be more restrictive than had been intended and these Amendments are designed to correct that position, so that a person who offends can stand for any Assembly election, or by-election, which is held more than five years after the date of his conviction. Amended as proposed, the subsection will provide that anyone convicted in the British Isles of an offence for which he is sentenced to not less than three months' imprisonment without the option of a fine will be disqualified from membership of the Assembly until a period of five years has elapsed from the date of that conviction. I believe that Amendments Nos. 31 and 32 will meet the case. In the light of that, perhaps the noble Lord will withdraw his Amendment.
Lord CAMPBELL of CROY: My Lords, I am glad that the Government, in looking into this, found it was necessary to make a change and tidy up this situation. Therefore, seeing that Amendments Nos. 31 and 32 are acceptable to your Lordships, I withdraw my Amendment.
Amendment, by leave, withdrawn.
Lord McCLUSKEY Lord McCLUSKEY moved Amendmends Nos. 31 and 32:
Page 5, line 27, leave out from ("has") to ("been") in line 28.
Page 5, line 33, at end insert ("and a period of less than five years has elapsed since the date of that conviction")
The noble and learned Lord said: My Lords, with leave, I beg to move Amendments Nos. 31 and 32 en bloc.
Clause 9 [Exceptions and power to grant relief from disqualification]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendments Nos. 33 and 34:
Page 6, line 19, leave out ("on any ground") line 20, after ("constituency") insert
("on any ground other than one falling within section 8(1)(aa) or (d) of this Act ").
The noble and learned Lord said: My Lords, when addressing myself to Amendment No. 29 I mentioned Amendments Nos. 33 and 34. I do not think I need to add anything to what I said on that occasion. Again, with leave, I would beg to move Amendments Nos. 33 and 34 en bloc.
Lord CAMPBELL of CROY: My Lords, the noble and learned Lord explained, when we were discussing the paving Amendment on Clause 8, the reasons for these two Amendments. I, in turn, must acknowledge that the Government have looked at this, and clearly have now tightened up the situations in which the Assembly could disregard a disqualification or could regard somebody as no longer disqualified. During the Committee stage I criticised the wording of this clause in these lines, and indicated that I thought that they went further in the original form than they ought to. The noble and learned Lord has now informed us that on looking into it they find that it would have enabled the Assembly to do more in this field than is done in Parliament at Westminster. I hope that your Lordships will agree with the noble and learned Lord that these Amendments should be made.
Lord McCLUSKEY: My Lords, perhaps I might be allowed to rise to my feet once again to acknowledge, as I should have done when I was addressing the House before, the contribution made in this regard as well by the noble Lord, Lord Campbell of Croy, who once again was very helpful to us.
Clause 15 [Defamatory statements in Assembly proceedings]:
8.47 p.m.
Lord MONSON Lord MONSON moved Amendment No. 35:
Page 8, line 13, after ("statement") insert ("relating to devolved matters").
The noble Lord said: My Lords, this Amendment and Amendment No. 37 are much more important than they might appear to be at first glance. The Committee came to Clause 15 a few weeks ago not very long before our dinner hour and, as tends to happen in such circumstances, we whipped through it with perhaps undue haste, not, I feel, having fully grasped its implications. Your Lordships' stomachs were understandably rumbling after a long and hard fought day, although the noble Earl. Lord Selkirk, and one or two other noble Lords put up a valiant rearguard action.
The implications of this clause are extraordinarily far-reaching. Immunity from the laws of libel and slander is surely something that ought to be granted exceedingly sparingly, yet it is proposed to grant such an immunity to Members of the Scottish Assembly. As the clause stands it will not matter a whit if they are discussing devolved matters or any other matter that comes into their heads, whether it has anything remotely to do with Scotland or not. Members of the Greater London Council, for example, have never been granted such an immunity even though they administer twice as many people as the Scottish Assembly will if it comes into being.
The noble and learned Lord, Lord McCluskey, has repeatedly assured us throughout all our debates on this Bill that Parliament will remain sovereign. Why, then, give the Assembly the status and dignity of a sovereign Parliament? I need not remind your Lordships that a well-known television personality was recently awarded over £30,000 damages—in fact I think it was nearer £35,000—for libel. This was the measure of the net income that he was calculated to have lost, or forgone, as a result of the libellous aspersions. Is it right that others throughout the United Kingdom should risk losing their entitlement to such damages because Parliament has not really thought this matter through?
The purpose of these two Amendments is to confine the cloak of privilege to discussion of devolved matters as defined in Clause 61 of the Bill. I have not tried to make the Amendment too restrictive. I have not, for example, used the words "relating purely to devolved matters", so there would still be loopholes for the mischievous. Nevertheless, I think it would still afford a vital protection to ordinary citizens in other parts of the United Kingdom—and indeed to those in Scotland when non-devolved matters are under discussion. Therefore, I urge your Lordships to accept this Amendment. I beg to move.
Lord McCLUSKEY: My Lords, I start by making the general point that I do not dispute what the noble Lord, Lord Monson, said; namely, that this kind of privilege should be granted sparingly. However, I do not think anyone would
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dispute that it needs to be granted in some measure to a legislative body. The GLC does not, as I understand it, fall into that category, nor indeed does Kojak. This is a different matter altogether.
The Government believe that these Amendments would simply not work in practice and that there is no way of making them work. I suggest to the House that we really must take a correct and realistic view of the likely content of debates in the Scottish Assembly and its committees. It is superficially attractive to say that the Assembly will be concerned only with matters in respect of which it has legislative competence or in relation to which the Scottish Executive has powers, but in my submission it makes no sense to imagine that the Assembly and Executive should or could be cooped up within a kind of sealed area surrounded by barbed wire and labelled, as this Amendment would seek to do, "devolved matters only".
For one thing, we should have no illusions about the difficulty—many noble Lords have referred to this in our debates—of determining whether a matter is or is not devolved. This is not any fault of the Bill or of the present Government; it derives from the fact that over the years Parliament has, no doubt in response to the requirements of society and the electorate, passed a great mass of legislation. I have referred to this before. That cannot be disentangled by any simple form of words. Accordingly, the question whether or not a matter is devolved can sometimes be rather difficult. I have said before, and I repeat, that anyone who thinks there is a simple way of defining devolved matters is not in touch with what has been happening in Parliament for a long time past.
We would have to accept, if that be right, that any Member of the Assembly could on occasion be quite uncertain as to whether he was addressing himself to a matter that was indeed devolved, and it would in my view be lamentable if we were to put some kind of restriction on debate because of the fear on the part of Members of the Assembly that they might be subjected to civil litigation. However, I seek to put the argument more strongly and at a different level. Why should we seek to restrict the Members of the Assembly to debating and considering

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devolved matters with this kind of protection? In the view of the Government, what is or may be happening immediately on the other side of the boundary between devolved and non-devolved matters will be a matter of legitimate concern to the Assembly. We cannot expect to put some kind of gag on the Assembly and place inhibitions on its debating, for example, aspects of housing policy which do not lie precisely within its legislative competence. The interactions and interrelations are much too close for that.
We shall be looking at the other Amendments to this clause which stand in the name of the noble Earl, Lord Selkirk, and in that context we can perhaps examine more fully the philosophy underlying the according of absolute privilege in respect of proceedings in a legislative Assembly. But I repeat that I believe it is completely wrong to try to impose constraints on liberty of expression within such an Assembly, and I believe there is a good deal of authority to support that. This is bound to be a source of some alarm to those who are, like the noble Lord, Lord Monson, opposed to devolution of this kind. Such people may claim that we are setting up in Scotland a kind of rival Parliament with the capacity to discuss anything it likes without any risk of adverse consequences, but there are two answers to that.
First, the Assembly's prime responsibility is in relation to matters which fall within its legislative competence or within the powers accorded to Scottish Secretaries; whatever they discuss or consider must have some relevance to that, or I do not doubt it would be outside the rules of relevance which the Assembly will itself develop. We have Rules in this House and there are Rules in the other place, and they govern debate. However, the ingenuity of Members, whether here or in the other place, is very successful in introducing irrelevant matter under apparently relevant heads, and we cannot hope by legislation to impose any specific limitation on what is discussed.
Secondly, is any sort of limitation enforceable? The Amendments to Clause 15 could be seen, I believe, as an attempt to place a curb in a somewhat odd way; the implication is that the Members of the Assembly may talk
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about anything they like, but if they stray outside devolved matters they do so at their peril, at the risk of civil litigation; and that is not an approach which the Government could accept, even if they thought—and they do not—that the wording produces a meaningful result or a result which could form the basis for any sort of regular practice in the Assembly.
We have said on a number of occasions that we do not think it right or realistic to attempt in this Bill to confine the Assembly to discussing devolved matters. In any event, we do not know what meaning could be ascribed to the concept of a statement relating to devolved matters. To return to my example about housing, would a statement about the undevolved part of housing be a statement relating to devolved matters? Exactly how close must the connection be? I ask these questions not because I know the answers—I do not—but because I suspect that these Amendments would simply cast on the courts the invidious task of deciding issues which are essentially political, for I cannot doubt that these Amendments would be seen by some as a green light to seek an opportunity for litigation with the ultimate object of putting the Assembly in its place.
Again, it is a matter of judgment, but the Government cannot believe that the Assembly will set itself up as a universal busybody which would seek to abuse the privileges which flow from this clause, and if it shows signs of doing that then one would have thought that the people in Scotland would themselves be the first to react; there would be that sort of control, as in many other related and unrelated matters. For these reasons, but particularly having regard to the character of this Assembly as a legislative Assembly, the Government consider that these Amendments are not workable and indeed are misconceived.
The noble Lord, Lord Monson, also made the point, and rightly, that on a number of occasions I and others have referred to the fact that the United Kingdom Parliament remains sovereign. Of course it does but in the normal case within certain areas the Assembly in Scotland will be passing legislation of a kind which would otherwise be dealt with in the United Kingdom Parliament. It must surely have the same kind of freedom,

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and I believe that to put this sort of barrier would make proper debate on matters within its competence extremely difficult.
Lord WILSON of LANGSIDE: My Lords, I support the Amendment. I did not wish to say so until I had heard the reply of the noble and learned Lord, Lord McCluskey—and I listened with fascination to what he said. As the noble Lord, Lord Monson, said, this is an important matter and it is a pity that by coincidence we should once again be discussing it at a late hour when interest tends to flag. Lord McCluskey said a great deal about putting a barbed wire fence around the deliberations of the Assembly. If I understood him aright, he rather suggested that those, like Lord Monson and myself, who are utterly opposed to the Bill have suggested that the Assembly would range unduly widely. It never occurred to any of us that this Assembly would range unduly widely until the noble and learned Lord's noble friend, Lord Kirkhill, took us all by surprise one evening at about this hour when we were sitting nearly half asleep—at least I was; I can only speak for myself—and I suddenly awoke to hear Lord Kirkhill say that the Scottish Assembly could discuss anything it pleased—even he said, Outspan oranges. That is where it all started.
It is no good the noble and learned Lord talking about us putting up barriers; we never thought about putting up barriers. When one considers inflicting on Scotland another 150 politicians, with all their supporting bureaucrats, to talk about Outspan oranges—well, the mind boggles. Why should they be allowed to talk with impunity about matters which are not their business? It has been said that many bodies speak about matters which are not their business, and that this is very right and proper.
In a democracy we encourage this. We encourage the Church, and in Scotland the Kirk, as well as industrialists and trade unionists to talk about a wide range of matters which are none of their business; and that is good and healthy. We are not complaining about that kind of thing. But why should the Government create, at vast public expense, an Assembly of 150 talkative Scottish politicians to talk about Outspan oranges and to give them
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the absolute privilege of impunity from action? That, as I understand it, is the question which this very serious Amendment raises, and for my part I would support it.
Lord CAMPBELL of CROY: My Lords, may I ask the noble and learned Lord about one point arising from what he said? He appeared to draw a distinction between the GLC and the proposed Assembly in Edinburgh, and he said that these provisions in the Bill were like this because the proposed Assembly in Edinburgh was to be a legislative Assembly, whereas the GLC is not. Does that mean that the noble and learned Lord regards a legislative Assembly as the kind of Assembly which requires this kind of privilege? Is that the distinction he is trying to make between it and the GLC?
Lord McCLUSKEY: My Lords, with the leave of the House I should like to say that the distinction is not essential to my argument. What is essential is that this is a legislative body, and I believe that there is much support for the view that a legislative body must have such unrestricted right of speech. On page 73, in Chapter VI, of the 19th edition of Erskine May it is stated:
"Freedom of speech is a privilege essential to every free council or legislature".
It may be that the GLC is a free council. But certainly so far as a legislature is concerned, if one seeks to remedy an evil by legislation, and one wants to introduce legislation to do that, one must be free to describe the evil. Sometimes one may be wrong. One may have misconceived something, and have thought an evil to be present when in fact there is no such thing. That is really the basis upon which one claims such a privilege for a legislative body.
Lord MONSON: My Lords, I am grateful to my noble friend Lord Wilson of Langside, for his support. I am sorry not to have received rather more support or interest from the official Opposition, because I thought that they described themselves as the Party who favour the protection of the individual—but there we are. I consider that the noble and learned Lord, Lord McCluskey, was rather too sanguine about leaving the clause as it stands. I believe that if the clause is left

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unamended, it will be a godsend to those who seek the break-up of the United Kingdom. Earlier this evening the noble Lord, Lord Vaizey—who, unfortunately, is not able to be here at this moment—and who is an expert on Irish history, was describing to me how the Nationalists in the Irish Parliament had used just such a privilege to cause all manner of mischief and stir up all kinds of trouble. Leaving the clause unamended will tilt the balance far too much against the ordinary United Kingdom citizen. While recognising some of the points made by the noble and learned Lord, Lord McCluskey, I believe that the possible consequences will lead to great resentment throughout the United Kingdom if certain statements which defame individuals are made with impunity.
However, in view of the fact that the noble and learned Lord has made a reasonable case for protecting oral statements I should prefer to stick on written statements—that is to say, Amendment No. 37— particularly in the light of what the noble Earl, Lord Selkirk, has to say on Amendment No. 36, and depending upon whether that Amendment is accepted. Therefore, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.6 p.m.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 36:
Page 8, line 13, leave out ("whether oral or written") and insert ("including written answers to questions").
The noble Earl said: My Lords, I beg to move this Amendment. We have just heard two or three speeches which I think have properly emphasised the importance which has been given to the Bill by Clause 15. The noble Lord, Lord Monson, has very properly said that the powers included are very far-reaching, and the noble and learned Lord, Lord McCluskey, has himself said they should be used sparingly. Everybody who has examined this problem—and many people have—has agreed that the powers should not extend beyond what is absolutely necessary for the proper performance of the Assembly's duty. I recall the last time that I discussed this matter with the
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noble and learned Lord the Lord Chancellor, who, incidentally, has told me that unfortunately he is not able to be present at the moment.
I am not going to argue tonight about the need for this protection which we are considering, and I am not going to argue that the Assembly should have the same protection as the Parliament in Westminster—but no more. Here is the crux of the point I am raising. I say that the words in question go far; they go much wider than what is currently the practice in Westminster. Furthermore, there is no reference whatever to the Westminster practice, nor indeed to Erskine May. I believe that it has been almost the universal practice that, when members of the Commonwealth have received Constitutions, their privileges have been directly related to those of the House of Commons. I had a letter from the noble and learned Lord the Lord Chancellor and I must say quite bluntly that he acknowledges he is going beyond the protection which is given in Westminster. He is taking recommendations from two reports which have not yet been implemented in Westminster. It is a perfectly frank acknowledgement that these rights go beyond those currently recognised in Westminster.
I have been through the report—I think it is 1968–69—for which Mr. Harold Lever was chairman. It is a very good and interesting report and I went fairly carefully through those points of consequence. May I read this? It is not very complicated but it is very important to get it right:
"any statement (whether oral or written) made in proceedings of the Assembly …".
"Proceedings of the Assembly"—those words come from a Bill of Rights at the end of the 17th century and have not been altered, and nobody has been able to alter them since that time. There has been infinite argument as to what they mean, and there has never been any agreement. You can find that in Erskine May (I think it is on page 51 in the edition that I have).
Let me go now to Mr. Harold Lever's report, the whole of which from beginning to end centres around the problem of uncertainty. Every report that comes before it refers to the uncertainty of what is meant by the proceedings in Parliament.

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It affects the Press, punishment, all kinds of things. Mr. Lever's report said that the only thing he could say with certainty was entitled to absolute privilege were things said and done in the Chamber. There was nothing else he could say with certainty was entitled to absolute privilege. But even that is not entirely true. For instance, if noble Lords in a corner have a conversation of a defamatory character, unconnected with the business of the House, that is defamatory; it is not privileged. There was one case where Mr. Bradlaugh was turned out by the Serjeant-at-Arms—that was not considered a proceeding of Parliament. Another Member of the other House assaulted the Speaker. That was not considered a proceeding of the House. These are matters which have arisen at one time or another, so even in the Chamber itself everything is not a proceeding of Parliament.
The Select Committee went on to say that Written Answers to Questions probably were absolutely privileged, as were notices of Motions, but it said specifically that letters to Ministers were not included. That is all included in the report. May I say with respect that the noble and learned Lord the Lord Chancellor is going beyond that, and may I also say with respect to what the noble Lord, Lord Monson, and others have said that we have no right whatever to go beyond that. It is totally wrong that we should do so. As I said, all examiners of this have made it quite clear that it should not go beyond that, and Mr. Lever's committee said the same thing. It should not go beyond what is necessary for the execution of its powers. Do we want to go beyond or do we not?
There were a number of recommendations. That was 10 years ago, but Parliament has not yet thought fit to adopt them. Are we really entitled to go beyond what Parliament stands for? These recommendations may be desirable—I am not arguing that. All I am saying is that at present I do not think we are entitled to go beyond the practice at present existing in Westminster.
The noble and learned Lord may not think my Amendment perfect. Perhaps I should also include Written Answers, but even that goes beyond what Mr. Harold Lever says is undoubtedly a matter of privilege. Maybe I should add notices of
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Motions. I think we should do what the Commonwealth countries have done and relate the proceedings in the Assembly directly to the normal standards of Westminster. I think this is very important. It is not a matter that we should slip up on. I am quite certain that the noble and learned Lord wants to get it right just as I do. This is a very powerful, and could be a vindictive weapon. People can use this very wickedly; and may I say that, in my experience, I have seen it badly used. It can be used in this manner, but I see no reason why it should be so. This is not a personal privilege: it is a privilege of the Assembly itself. It does not belong to individuals: it is part of the dignity of the Assembly that these powers should be properly used. I see from Clause 79 that this extends to committees, too. That is perfectly all right—I have no objection to that—but it makes it doubly important that we should get this right and should not overstep it. Frankly, I think we have been rather rash in trying to put this into writing—something that the House of Commons has not done for 300 years—and I think we should be very careful what we put into this Bill. I beg to move.
Viscount COLVILLE of CULROSS: My Lords, I do not think I can adequately add very much to what my noble friend has said, except for this: that on a subject like defamation, about which I am myself signally ignorant, a few lines in a Bill like this are likely, as it seems to me, to give rise in due course to a fair amount of litigation. If the way in which the Bill is drafted in this clause is not accurate or is open to differences of interpretation—and my noble friend has mentioned a number of possible differences that could arise—then of course in the end the dispute will come before the courts; and if there is one thing which is notorious it is that I do not think that in Scotland any more than in England is legal aid available for litigants in defamation cases. Such a case will therefore be litigated at the expense of the private citizen, entirely unaided by any form of subvention, even if he is the poorest person in the land.
I think I can detect that there will be difficulties in the Government merely saying that, "for the purposes of the

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proceedings in the Assembly, any rule that is currently in force in Westminster as to what are or are not the proceedings of Parliament shall automatically apply to the Assembly", and I am not sure that I see that the drafting of such a provision would be very easy. Nevertheless, I am inclined to share the concern of my noble friend about whether we have been sufficiently accurate in defining exactly what parts of the proceedings of the Assembly are to be protected by this complete privilege from any subsequent action in delict—if defamation is delict in Scotland, as I trust it is.
I think that the noble and learned Lord will wish to help on this. It may be that it is a very difficult area upon which he may not be able to give us a great deal of guidance, but he certainly will not, I feel sure, wish to provide the Assembly in Edinburgh with a greater amount of protection than obtains in the Parliament in Westminster. That, I am sure, is not the intention of the Government in drafting this, and what we are really trying to do is to produce a parity. The difficulty, as my noble friend has pointed out, is to see what are the areas in Westminster which are indeed protected; and, without taking this clause out of the Bill altogether and simply writing in that everything which is done in Westminster shall automatically be done in Edinburgh, whenever it occurs and without any further legislative intervention—which is obviously a difficult thing to draft—I wonder whether there is any device we can think of. Perhaps it is a matter of Standing Orders; perhaps it is a matter of rules; perhaps it is a matter which we can approach on a flexible basis as things emerge during discussion in the course of the implementation of some of the recommendations of the Lever Committee. I know not what would be best, but it seems to me that that might be a more constructive approach than to try to get it all right this evening, because we are not going to be able to; and if we get it all right this evening we shall not get it right on a permanent basis. If the noble and learned Lord will perhaps look at this with that sort of approach in mind—I hope that is a constructive way to go about it—he may, for all I know, find that this Amendment is a good thing to have in anyway, but he will still have an opportunity to go a little further.
Lord HYLTON: My Lords, I was very surprised to listen to some of the remarks of the noble and learned Lord, Lord McCloskey, when he was replying to the previous Amendment. He spoke about putting a barbed wire fence round some of the proceedings in the Assembly, and he spoke about gagging its deliberations. That seemed to me to be very strong language indeed; and he used as one of his examples discussions on housing policy. I have taken part in quite a few discussions on housing policy, some in this Chamber and some outside of it. I cannot think of any occasion on which I would have felt that I needed the defence of Parliamentary privilege against possible attacks under the law of defamation. I should have thought that any reasonable Assemblyman could, with a little thought, keep himself on safe ground. I hope that the noble and learned Lord will consider very seriously what my noble friend, Lord Selkirk has already said and what my noble friend Lord Colville of Culross went on to say. I hope that if he is unable to provide a helpful and sympathetic reply on this Amendment that they will press it to a Division.
9.20 p.m.
Lord McCLUSKEY: My Lords, I certainly believe that the principles on which the Government have sought to approach this matter are principles that we share entirely with the noble Earl, Lord Selkirk, and the noble Viscount, Lord Colville of Culross. Indeed, against that background I must confess that I have some little difficulty in understanding one or two of the phrases used by the noble Earl, Lord Selkirk. It may be that we have in mind a different letter in the course of the correspondence between himself and the noble and learned Lord the Lord Chancellor, but in the letter of 2nd June from the Lord Chancellor to the noble Earl, the second paragraph begins:
"As I said in the debate, the words proceedings of the Assembly' are used deliberately in order to attract the same meaning as is attracted by the similar phrase, 'proceedings in Parliament', although we are well aware that the phrase has caused problems at Westminster".
So the intention was—and, as I understood it, that was what was contained in the letter—that there should be no greater privilege accorded to the Assembly than is accorded to Westminster.
The Earl of SELKIRK: My Lords, may I read a paragraph further down? This is the third paragraph of the 2nd June letter and it says:
"The Joint Committee on Publications of Proceedings in Parliament recommended in the 1969–70 Session that there should be a statutory definition of proceedings in Parliament '.".
This recommendation was endorsed by the Faulkes Committee. Both the Committee and the Faulkes Committee suggested that it should be made clear by statute that the protection should extend to written communications, for example, between Members of Parliament and Ministers about matters within their respective duties. Those are the recommendations which have not been carried out in Westminster. That is the point I wish to make.
Lord McCLUSKEY: My Lords, I do not want to read the whole letter into the record but the essence of the matter is —and I now quote from the fourth paragraph:
"While recognising the existence of problems at Westminster caused by the absence of a definition of 'proceedings in Parliament', I do not think it would have been right to attempt to solve them in relation to the Assemblies in advance of Westminster legislation. The Scotland and the Wales Bills are complicated enough without trying to use them as vehicles to provide solutions to this kind of wider problem.".
What, in essence, is being said there is that in this matter of precisely what is included in the term "proceedings in Parliament", we acknowledge there is a degree of uncertainty, and we acknowledge that recommendations have been made from time to time about how Parliament, through legislation, might go about the problem of defining "proceedings in Parliament", defining the extent of the privilege. But Parliament, despite recommendations and despite a draft clause from one of the committees, has not grasped this particular nettle.
May I, generally, turn to the clause itself and say what are the objectives of the provision in Clause 15. They are, first, to give the Assembly as near as may be the same liberty of expression as Parliament enjoys and not to go beyond that; and, secondly, to try to achieve this result with the minimum of provision and without entering too far into the minefield of Parliamentary law on this matter.
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I have already addressed myself in answering the previous Amendment to the general matter of liberty of expression. I have said—and I repeat it here because it is relevant—that the critical factor, though not the sole factor, is that the Assembly is to have legislative competence. Indeed, it will be passing legislation of a kind that would otherwise be passed in Parliament itself. For that reason, as I have already sought to explain, there must be freedom of speech so that the content of the legislation can be fully and properly discussed. I hope the House will not think that my language was extravagant in answering the previous Amendment. The noble Lord, Lord Hylton, referred to housing. I can think of the debates some years ago on what came to be known as "Rachmanism". In that context, had the persons who were addressing themselves to the problem of Rachmanism felt that they faced civil litigation if they described the evils in certain terms, the debate could not have been properly conducted. So I believe that housing is not a bad example, and in that particular instance makes good the language that I used.
Accordingly, the Government seek to achieve by Clause 15 the kind of protection which I have described. In relation to the actual provision, what we say is this: we acknowledge that there has been a good deal of debate over many years about the meaning of "proceedings in Parliament" both in court and in the course of the considerations of various committees. But the Parliamentary machine works tolerably well despite the doubts and some uncertainty. As the letter by the noble and learned Lord the Lord Chancellor sought to say, what the Government do not want to do in the context of this Bill is to embark upon the somewhat hazardous enterprise of trying to write out, as it were in longhand, a detailed code about exactly what material is protected in exactly what circumstances. As I said, various successive Governments in Westminster over the years have, for one reason or another, hesitated to do that and have not done so. We do not believe that we should introduce some kind of pilot scheme into the Scotland Bill.
The Amendment seeks to retain absolute privilege for oral statements. Let us be quite clear about that. The noble Earl, Lord Selkirk, was himself absolutely

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clear; but I want to underline the point that he does not seek to restrict the absolute privilege contained in the clause in respect of oral statements. However, in the sphere of written statements, the Amendment would confer absolute privilege only on Written Answers to Questions. We believe that it ought to run wider than that. Suppose, for example, the Assembly creates, as it may well do, pre-legislation committees to which Government Departments and interested parties can submit written representations. In these representations they may wish to describe some of the evils which they suggest ought to be put right by Assembly legislation.
Would it not he right for these representations containing these assertions to be incorporated into the record? Surely, in that kind of context, they would form part of the legislative process. If some body or person thinks that it or he may be libelled or may have been libelled, is the remedy to apply to the court for an injunction in England or an interdict in Scotland and to hold up the Bill indefinitely? Would not the proper course be for it to submit its own representations? Is not that in a sense the meaning of "open Government" which is so widely advocated today?
I believe that although there have been cases of difficulty over the years, and that Committees have sat on this matter, including the one upon which the noble Earl played a distinguished part, and although they have been unable to arrive at conclusions and recommendations upon which Parliament felt able to act, none the less I believe that the system which obtains at the present time works well enough. I do not think that the Westminster tradition has sought to cover such things as casual remarks between Members not related to the subject of the debate, whether in the lobbies or on the Back-Benches or in the course of some kind of altercation. Indeed, I do not believe that the wording in Clause 15 could seek to cover such a situation.
I was asked whether we would consider this again. As noble Lords will appreciate, I was not myself involved in this matter when it first came up, though I did listen with interest. I did not take part in the subsequent correspondence but I am assured that the draftsmen have looked at this
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with great care in the light of the exchanges that took place. The exchanges were perhaps a little truncated by the dinner-hour on the last occasion, but the message was loud and clear and of course the draftsmen had access to the reports to which reference was made then and again today. In the light of this reconsideration, and in view of what was said last time, the draftsmen advise us, and we accept that advice, that this clause does what we seek to do and it gives to the Assembly the privilege which is accorded to Parliament by the existing law, and no more. For that reason I would defend it as it stands and would ask your Lordships not to accept this Amendment.
Perhaps I might say just one other thing about the Amendment. Having listened to the noble Earl, Lord Selkirk, and having heard one or two of the remarks made by the noble Viscount, Lord Colville, I am a little uncertain as to whether they themselves are entirely satisfied with the drafting of the Amendment and the effect that could have on the clause. Perhaps the noble Earl when he replies would elucidate that a little further for me.
The Earl of SELKIRK: My Lords, I am not quite certain how far the noble and learned Lord says he will look at this. I am bound to say that some of his remarks are disturbing. He said, for example, that if you give evidence to a committee, that evidence is completely privileged. That is a pretty wild statement. I could give evidence to a committee and say some ghastly things about all sorts of people and then say: "That's all right: I am absolutely privileged." I think one has to be careful about that sort of thing, and I should have thought that the noble and learned Lord should err on the side of caution.
There is no doubt at all—I have given evidence of this and I do not want to go over what I have said before—that this goes further than is the current certain practice in Westminster. I say with respect that I do not think we should allow this to pass as it is. I have made two suggestions as to what could be added. I think Written Answers should be added and Notices of Motion should be added; but when it comes to giving evidence before a committee, to say that it is automatically covered means that you are

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throwing this privilege awfully wide, and much wider than is normally accepted in Parliament.
I would ask the noble and learned Lord whether he would look at this and give an opportunity of seeing what might be done, because I think we are asking a lot of a new Assembly—not one that has been in existence for over 700 years and evolved over many decades—a brand new body, which is being given this burning power to hurt other people. I think we need to be very cautious. I do not think we should be too rough about this. We could extend it afterwards. If the noble and learned Lord will say that he will look at this carefully, I shall be very glad to withdraw the Amendment.
Lord McCLUSKEY: My Lords, I am in some difficulty because my advice is that this matter has been looked at very carefully and I am sure that that is so. However, at the risk of making myself unpopular in certain quarters, I am going to say to the noble Earl that we have had some very successful and fruitful discussions with the noble Viscount and with the noble and learned Viscount, Lord Dilhorne, in relation to other matters. I do not believe that we have had such a discussion with the noble Earl, Lord Selkirk, and I believe it might be very fruitful if we were to do so. I am not promising that I shall be able to persuade Parliamentary Counsel to change their minds, but I think I ought on my own responsibility to make the attempt, and accordingly I will undertake to do so.
The Earl of SELKIRK: I thank the noble and learned Lord for what he has said, and I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
9.34 p.m.
Lord MONSON Lord MONSON moved Amendment No. 37:
Page 8, line 16. at end insert ("relating to devolved matters;").
The noble Lord said: My Lords, I beg to move this Amendment, which is slightly different in effect from Amendment No. 36, which has just been moved by the noble Earl, Lord Selkirk. I believe it is also slightly less restrictive
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in that it provides full protection as far as documents relating to devolved matters are concerned. Whatever may be said in favour of extending privilege to oral statements, some of which may be made in the heat of the moment—and to that extent I am prepared to accept the reasoning of the noble and learned Lord, Lord McCluskey—no such arguments can be justifiably employed to defend libellous documents. For that reason, and particularly in view of the powerful and informed arguments on his Amendment just advanced by the noble Earl, Lord Selkirk, I hope that the House will accept this Amendment. My Lords, I beg to move.
Lord TORPHICHEN: My Lords, I think the point which the noble Lord, Lord Monson, was making was that one of the misuses of privilege in the Assembly would be when it was discussing reserved subjects, and some Members were specifically attempting to drive wedges and to foster separation from the United Kingdom. That is probably not one of the more important arguments on this Amendment, so I shall leave it. The argument about parity with Westminster should be put slightly more strongly. The noble and learned Lord, Lord McCluskey, said that the present wording of the Bill gives parity with the Westminster Parliament. But, since some of the subjects which the wording of the Bill makes privileged could perfectly well be raised in the Westminster Parliament, I would say that to give the same privilege in the Assembly is to give it more than parity with Westminster.
I have one other point. The noble and learned Lord, Lord McCluskey, assured us that the courts would have great difficulty in deciding what was or was not a devolved matter, in relation to a defamation case. I should have said that the whole Bill depends upon the courts being able to discern the difference between a devolved matter and a non-devolved matter. If, in any case other than a defamation case, the courts cannot decide what is devolved and what is not devolved, then the whole Bill is unworkable anyway. Therefore, the very fact that the Bill has been put forward assumes that the courts will be able to find the dividing line between devolved and non-devolved matters, and will be able to

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apply it as necessary in a case of defamation. So I strongly support the Amendment of the noble Lord, Lord Monson.
Lord McCLUSKEY: My Lords, I believe that we are talking about Amendment No. 37, which is to insert at page 8, line 16, the words "relating to devolved matters". If I may read the clause as so amended, it would then read:
" (1) For the purposes of the law of defamation in any part of the United Kingdom—
(b) the publication under the authority of the Assembly of any document relating to devolved matters;
shall be absolutely privileged.".
Let me draw attention to what is involved here. We are talking about the publication, under the authority of the Assembly, of a document. We are not talking about casual remarks that are made. We are not talking about that at this stage. Apart from pointing that out, I believe that everything I have said in relation to the last two Amendments has relevance here, and I do not want to take up time by repeating points that I have already sought to make. I do not believe, given that we have departed at least for the moment from Amendments Nos. 35 and 36, that having regard to the limited character of Amendment No. 37 the House would seek to support such an Amendment at this stage, and I invite the House not to do so.
Lord MONSON: My Lords, everything which the noble and learned Lord, Lord McCluskey, has just said reinforces my case. I accepted rather reluctantly his argument on my Amendment No. 35, because I see that it is possible for people to utter slanderous statements in the heat of the moment without realising what they have said. However, before a document is published there is plenty of time to think things over and make absolutely certain that nothing libellous is said. I think that the House of Commons, which never had a chance to examine this clause in detail because of the guillotine, ought to be given a chance to do so. When they have examined the pros and cons and come to a decision accordingly, they can either accept it or reject it as they wish. Therefore I intend to press this Amendment.
Viscount COLVILLE of CULROSS: My Lords, before the noble Lord does so,
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might he not just consider what the noble and learned Lord, Lord McCluskey, said a few moments ago on the Amendment which was moved by my noble friend Lord Selkirk? One cannot pick out just the publication of a document that relates to devolved matters as opposed to the publication of any other document and say that this should be the acid test of what is or what is not to be a matter that is absolutely privileged.
The whole point of what my noble friend Lord Selkirk was saying seemed to me to be this: that here there is an area of real and, I think, accepted difficulty and the moment in time has arrived when, to the misfortune of the knightly and learned draftsman who has to put this upon paper, he must put something down which will do in the Scotland Bill. The noble and learned Lord has said that he will look with my noble friend Lord Selkirk at the way in which this has been done. He will not then be in the difficulty of each of us making only one speech; there will be a number of opportunities to go rather further afield than we have been able to do in this debate.
May I ask whether the noble Lord, Lord Monson, is going to insist upon this one point when there is, if he looks at the report of the committee under the chairmanship of the right honourable gentleman Mr. Lever, a whole area of difficulty which is just as worthy of consideration in another place since the other place did not have the opportunity previously to consider these matters. Is the noble Lord really going to insist today upon this one point after the noble and learned Lord has said—I think with a good deal of acclamation in the House—that we could with advantage have a sensible discussion about the whole area covered by Clause 15.
With the greatest respect to the noble Lord, I should have thought—and I hope that other noble Lords in the House will agree with me—that since we have had such an offer from the Government we ought to take it up before a firm line is adopted about insistence upon one particular Amendment. Of course the noble Lord feels strongly about it; and I think that many other people are very perplexed. Now, however, we have received a generous offer, and it is one upon which I hope noble Lords will rely.
Lord HYLTON: My Lords, while the noble Lord, Lord Monson, is making up his mind, one difficulty regarding Amendment No. 37 is that a document which was published under the authority of the Assembly might contain some matters which were devolved and some matlers which were not, and this could give rise to problems. It may also be helpful to point out that before a publisher puts any book or publication on the open market, normally he takes legal advice if there is anything at all suspect or difficult about it.
Lord MONSON: My Lords, with the leave of the House, if I have interpreted correctly the remarks of the noble Viscount, Lord Colville of Culross, he is urging me to wait until Third Reading—may I ask the noble Viscount whether or not that is so?
Viscount COLVILLE of CULROSS: Yes, my Lords.
Lord MONSON:—to see whether the Government come forward with some kind of compromise Amendment. I am afraid that I did not interpret what the noble and learned Lord said in that way. If, however, it is the case that before Third Reading an effort will be made to arrive at a suitable accommodation, then beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 18 [Legislative competence of Assembly]:
9.45 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 38:
Page 9, line 1, leave out ("contained in a Scottish Assembly Act").
The noble and learned Lord said: My Lords, we now come to Clause 18 and it would perhaps be to the convenience of the House if we were to discuss this Amendment No. 38 along with certain others, eight in number; namely, 39, 42, 44, 48, 50, 51, 52, and No. 175, an Amendment to Schedule 12. These Amendments are the fruit of one of the discussions to which I referred a little earlier and perhaps I may describe them. They are directed to the binding nature of the decisions of the Judicial Committee of the Privy Council. They seek to do
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two things: first, to tighten up the provisions which specify exactly what the Secretary of State should refer to the Judicial Committee on pre-Assent review, and secondly, to ascribe finality to any decision of the Judicial Committee, whether pre-Assent or post-Assent. That is the general description and I will now try to guide the House through these Amendments.
The Amendments to Clause 18 clear the way for what follows. Clause 18(2) now becomes a simple statement that any question whether a provision is within legislative competence should be determined in accordance with Schedule 2. At present a distinction is made between Acts and Bills; and this distinction does not have to be maintained. The revised Clause 18(2) will be completely general and will refer simply to "a provision".
The relevant Amendments to Clause 19 change the emphasis of that clause very substantially. They would require the Secretary of State to refer not a whole Bill —which by virtue of Clause 19(2) can mean any specified provision of a Bill—but any of the provisions of a Bill. This would not prevent the Secretary of State, in a suitable case, from referring all of the provisions of a Bill; but either way his duty will be to identify the suspect provisions for the guidance of the Judicial Committee. So the Judicial Committee will give their decision upon those provisions and this is of vital importance in relation to the finality provision which is now offered. This provides that if the Judicial Committee accept a provision as being within competence, that decision is binding in all legal proceedings. Amendment No. 175 to Schedule 12 would make similar provision with regard to a post-Assent decision.
I must explain the intention with regard to pre-Assent decisions. The House in Committee was insistent that the binding nature of such a decision should be limited to the matters in issue before the Judicial Committee. We think that is right and consider that we have achieved this; but I must make it absolutely clear what we are now doing. A pre-Assent decision will be that a particular provision is, or particular provisions are, within competence. Any provision which has been examined and, so to speak, passed by the Judicial Committee of the Privy

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Council will thus, if I may use a particular expression, have been proofed against future challenge and we do not think it would be possible or appropriate to proof it in respect only of the particular arguments which were adduced to the Judicial Committee. There has to be a theoretical possibility that somebody might one day want to argue a ground which was not in fact argued on pre-Assent reference. We do not think this is very likely because any provision referred will be subjected, we believe, to the closest scrutiny.
One has to bear in mind that so far as the Government are concerned such a reference will be a major issue to which the whole weight of the Government's legal machine will be applied. Ordinarily the question will involve close examination of the various elements of Schedule 10, starting with the identification of a matter as a devolved matter within Part I and leading through the relevant parts of Part II and Part III. But, of course, there is still a theoretical possibility that some argument is not in fact adduced and does not emerge until a real life case throws up a particular ground. We think this is unlikely but we concede that it is possible.
In any event we advance this further point. When a provision has been examined in the way envisaged and then endorsed by the Judicial Committee on pre-Assent review, the citizen at large ought really to be entitled to regard that provision as being sound and indisputable law. In this case it seems reasonable to place his interests above the interests of the aggrieved citizen who would like, on post-Assent challenge, to find some new argument or some new ground which escaped the Judicial Committee on pre-Assent review or has not been presented to them. So we do concede that this is a slight inroad into the perfect post-Assent judicial review, but we believe that the advocates of judicial review have really got here most of what they want, and we believe this is a reasonably satisfactory compromise. It is certainly one which we discussed, and I believe it meets the wishes of the noble Viscount and the noble and learned Viscount, Lord Dilhorne.
There is no corresponding point on post-Assent challenge, because in a post-Assent case what is taken to the Judicial Committee is, of course, whatever the
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particular case requires. So this is a general description of this collection of Amendments, and I commend them to the House. I believe that they will be welcomed by the noble Viscount, but I wait with expectation. I beg to move.
9.52 p.m.
Viscount COLVILLE of CULROSS: My Lords, in response to that, perhaps I can start with Amendment No. 175, out of what I can only think is true illogicality; it is the odd man out, slightly. It provides exactly what I had hoped in that if, as it turns out, we are in fact going to send references to the Judicial Committee, as opposed to this House—and that was the decision on the Committee stage—then we had to provide that the decision of the Judicial Committee shall be domestically binding all over the British Isles; unless we put something in the Bill that would not automatically have happened. So that is an exceptional point which does not run entirely along the lines of all the rest of the noble and learned Lord's points; certainly that is one that I am very pleased to see, and I hasten to assure him and the House that I am also pleased to see all the rest.
The point is this. This perhaps is only really repeating in different words what the noble and learned Lord has said. The Civil Service and the joint draftsmen in London and Edinburgh, who I think will be in constant liaison on legislation, will have had a very close eye on the vires of all Bills that come up in Edinburgh. We shall, therefore, at that stage, before the Bill is even presented to the Scottish Assembly, have a very close scrutiny to make sure that mistakes are not made. Then there is the consideration on the pre-Assent review, under the Clause 19 that we shall come to in a moment. There is only this sole example of the education case in Northern Ireland to which we referred at the last stage, which is not I think a very good one, because I would not normally expect a local authority to get into the act in the way in which they did in that case. The ordinary situation, as I would believe it to be, would be that there would be the Law Officers of the Crown from Edinburgh and from London arguing the case in front of the Judicial Committee.
One of the things that are going to be provided in a later Amendment—and I

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cannot remember whether this is one of those which the noble and learned Lord mentioned, but it is No. 46—is a pre-Assent review in the case of doubt. The doubt may come from anywhere and the doubt will certainly be presented in the form of a positive question for the Judicial Committee to decide. So, we shall not have a blanket reference—as the Bill at present provides—for a Bill to he looked at without anybody picking out the specific issues over which there is a worry.
If a Bill is to be referred, it will be because each and every clause in that Scottish Assembly Bill needs to be looked at by the Judicial Committee. If each and every clause does not need to be looked at, then the reference will relate only to those clauses, schedules or whatever, that do need to be looked at. Therefore, the whole system has changed so that the area of dispute will now be identified and specifically presented by the lawyers on both sides by way of argument before the Judicial Committee for it to decide. As I understand it, this is a fundamental change at any rate in the way in which it might have happened, but not necessarily in the way in which it would have happened. It is a great step forward.
For myself—and I hope that noble Lords on this side of the House would agree with me—I feel that the penalty that one has to pay for having that degree of precision in the pre-Assent review is that, thereafter, if Clause 3 has been looked at, it will have been looked at on all possible grounds of argument and it will be no use subsequently discovering some recondite point which was not, in fact, presented by the Lord Advocate, or by the Scottish Lord Advocate or whoever it was, to the Judicial Committee. That clause will, as the noble and learned Lord said, have been proved.
I should have thought this a reasonable compromise to reach. There are noble and learned Lords, and I should think there are noble Lords too, who would say there is no cause to challenge a Scottish Assembly Bill at all and that, if for some reason a mistake is made, the citizen must live with that mistake. I do not agree with that, but I do agree that we would have to come to some meeting ground in the middle. I believe that after a great deal of very careful thought by the Government, by the draftsman and by all
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of those who have taken part in these discussions, we now have a system as regards this whole matter which will in fact work and as regards which I should have thought there would be a minimal chance of failure or complaint arising.
Therefore, I would commend this series of Amendments to the House. All I can say is that it is very satisfactory and a matter of gratitude on our part that the Government have gone so far as to meet a great number of points, and a variety of points which were not necessarily expressed in what the noble and learned Lord said, but which are covered by these Amendments.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 39:
Page 9, line 4, leave out from first ("Act") to end of line 7.
Schedule 2 [Legislative competence of Assembly]:
9.58 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 40:
Page 46, line 19, leave out from beginning to ("a").
The noble and learned Lord said: My Lords, I beg to move Amendment No. 40. A glance at the Marshalled List will convince your Lordships that this is one of the most astonishing looking Amendments before the House because it stands in the name of the Lord Chancellor and the noble Lord, Lord Morris. It just shows that if we go on long enough we can get agreement between even the most implacable foes in relation to a matter of this kind! We had discussions about Schedule 2 during the Committee stage and the Government have introduced Amendments Nos. 40 and 41. The arguments to be advanced in connection with the Government Amendments to this Schedule apply here and I think that I should, with your Lordships' leave, deal with Amendment No. 41 as being the more important Amendment, and perhaps move Amendments Nos. 40 and 41 together in the name of the Lord Chancellor.
During the Committee stage and the debate to which I have referred the breadth

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of paragraph 8 of Schedule 2 attracted a good deal of notice and criticism. In particular, the wording there was criticised because it seemed to allow cross-Border legislation, and it was also criticised because of the words "necessary and expedient", which are contained in paragraph 8. The Government have always maintained that the power to legislate across the Border was never intended for, and would not have been available for, anything more than purely consequential provision; and certainly would not have been available for substantive provision.
However, having carefully considered all the points that were raised during the Committee debate, and noting the deep concern of your Lordships and the moderate way in which the arguments were advanced, the Government have accepted the central thesis that they should remove any possibility of extra-territorial power and also the apparent policy discretion arising from the phrase, "necessary and expedient". The new paragraph 8, as amended, makes clear beyond argument the extent of the provision. Therefore, what is allowed is a provision which is "merely incidental to or consequential on" other provisions which are themselves within legislative competence. That then is the effect of Amendment No. 41. Amendment No. 40 simply paves the way to that. I beg to move Amendments Nos. 40 and 41 together.
The DEPUTY SPEAKER (Viscount Hood): My Lords, I think that we had better move them separately because there is another Amendment between them.
Lord McCLUSKEY: My Lords, I apologise.
Viscount COLVILLE of CULROSS: My Lords, I only hesitated because I was hoping that my noble friend Lord Morris would be here to shout "hooray", but he is not. However, I shall do so on his behalf. I endorse what the noble and learned Lord has said. I think that I can go even a little further than what he has already said by way of commendation of his Amendment, because it gets over a number of difficulties which arise in later clauses—Clause 36 and so on—about the extent of reserved matters.
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What I think has really happened is that very probably nothing that was put forward by way of legislation or subordinate instrument in Edinburgh would, in practice, ever have gone beyond what the Government are now suggesting in the new paragraph 8; but there was always the possibility that it would with the wording as it stood. There was an area of dispute, or an area of possible dispute and litigation, which certainly greatly worried me. The Government have now curbed these provisions so that they are circumscribed in a way in which I should not have thought could cause any objection to anybody.
If I may say so, this is a substantial concession by the Government and it is one for which we are very grateful. As I said, it is probably not a matter that would have turned out to be of substance in the end. But when one is looking at the matter in terms of the words in the legislation, it is a great comfort to make sure that this has been cut down to what we, on this side, think is the proper size of the small amount of consequential legislation that can be allowed. It is now quite clear. It has also cleared our minds of a great many troubles. I am grateful to the Government for these two Amendments and I commend them to those on this side of the House as well.
Lord McCLUSKEY: My Lords, briefly, may I thank the noble Viscount, Lord Colville of Culross for drawing attention to the effect on later clauses. I should have paid tribute not only to his contribution at an earlier stage, but to that of the noble Lord, Lord Morris, and also to those of noble and learned Lords who are no longer present but who certainly helped us in arriving at this decision. I apologise for not referring to Amendment No. 40A; it happens to be one of the Amendments with which t am not dealing and I seem to be blind to its presence on the Marshalled List.
10.4 p.m.
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE moved Amendment No. 40A:
Page 47, leave out lines 5 to 13.
The noble and learned Lord said: My Lords, I move this Amendment with a certain amount of diffidence, not just because of the lateness of the hour, but

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also because the area of local government finance is not one in which, in the ordinary way, I move with great confidence. The area, of course, is one in which the noble Lord, Lord Kirkhill, has a knowledge and experience in Scotland second to none, unless of course it be that of the noble Lord, Lord Hughes, who happily for me, is no longer here tonight.
I put clown a similar Amendment in Committee seeking to elicit clarification as to the intent and meaning of paragraph 4(2) of the Schedule, because it had given rise to some uncertainties in industrial circles and also I think, among the local authorities themselves, or so I was told, although I have no first hand knowledge of that. The noble Lord, Lord Kirkhill, replying on that occasion, on 18th April, said, after referring to the intention made clear in paragraph 4(1) of the Schedule:
"… what sub-paragraph (2) of paragraph 4 does, and what it is strictly limited to doing, is to provide the Assembly with a perfectly appropriate competence to legislate in respect of the local government rating system which of course is specifically devolved in Group 5 in Part I of Schedule 10 ".—[Official Report, 18/4/78; col. 1039.]
Had that been all that paragraph 4(2) achieved, that might have been all right. But does it not go further? Does it not empower the Assembly arbitrarily to effect alteration in rates and thus to interfere with the local authorities in the exercise of their powers. Is that not involved in the terms of paragraph 4(2) of the Schedule? I ask the question tentatively at this stage. It certainly goes further in this way. It empowers the Assembly—and the noble Lord, Lord Kirkhill, said this—to alter the law in relation to industrial de-rating, so that here again there is another important area where there is perhaps scope for difference between the Assembly and Parliament at Westminster. That is all tentative and interrogative. But these doubts are raised.
The point is, were they discussed in the other place at all? Was any part of paragraph 4(2) discussed in Committee in the other place at any time? My recollection—the noble Lord, I am sure, will correct me if I am wrong—is that the only part of Schedule 2 which was discussed in the other place was paragraph 8. I suggest, with a certain diffidence, and somewhat tentatively, that it might be appropriate here to delete these important
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provisions in order to give the other place the opportunity, which it did not have the last time round, to discuss them.
I am reinforced in this view by what I find that the noble and learned Lord, Lord McCluskey, said on 4th May in dealing with an Amendment put down, I think, by the noble Lord, Lord Vaizey. Here I read from column 413 of the Official Report for 4th May. Your Lordships may remember the Amendment on powers of taxation. I felt myself, but then I have a nasty and suspicious mind about this Bill, that what the noble and learned Lord said in reply perhaps rather let the cat out of the bag. He said:
"It may well be that if the whole system of rating is reconsidered and changed"—
and consider this in the context of paragraph 4(2) as it presently stands—
"and some form of local income tax introduced, that may be a candidate on to which the Scottish Assembly might wish to fasten.".
Surely this area should be discussed in the other place. If this Amendment were put into effect, that would present the opportunity to the other place of doing that which was denied them on the first occasion. I beg to move.
10.12 p.m.
Lord KIRKHILL: My Lords, we have been over this ground, in my view, in a substantial manner at the Committee stage. Nevertheless, the Amendment in the name of the noble and learned Lord, Lord Wilson of Langside, enables me to explain again to your Lordships' House the very limited purpose of paragraph 4(2). It is to restrict the competence which would otherwise be created by Group 5 in Schedule 10, which deals with local government and local government finance, to three specific areas. These are modifications of the existing rating system; the replacement of the existing rating system by a similar local tax—that is, one which can be levied only by elected local authorities and related to the occupation of property, and to making further modifications to a local tax of this kind.
The effect of the noble and learned Lord's Amendment is to deny the Scottish Assembly any competence whatever to legislate about local authority taxation. He feels that this would be the appropriate thing to do, but the Government, on the

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other hand, take the view that local government and its associated financial arrangements are matters which ought properly to be within the competence of the Assembly and the powers of the Scottish Executive.
As noble Lords will be aware there already exists a quite separate system of rating in Scotland which is based on different legislation to that relating to England and Wales. It has in the past been regarded, therefore, as a matter which has a particular significance in purely Scottish terms. It would surely be an unreasonable derogation from the scope of the devolution of local government and local finance if the kind of competence conferred by paragraph 4(2) were removed. It would create a boundary between devolved and non-devolved matters within the general devolved area of local finance which could not be rationally defended.
It would surely place a quite unreasonable burden on Parliament if all legislation on the rating system in Scotland could only be enacted at Westminster, having regard to the fact that other local government and local finance questions would be dealt with entirely by the Scottish Administration. That is not to say that the Bill is inadequate in the safeguards it provides in relation to local tax matters.
The Scottish Assembly will not have an unrestricted competence to legislate about local taxation, since the creation of an entirely new local tax could have serious implications for national finance or for national policies in reserved fields. What paragraph (4) does is to prevent the Assembly's competence in local government matters from extending further than legislation to modify the existing rating system or replace it with a closely analogous system.
As I have said previously, the Government believe the Schedule as it stands strikes the right balance between, on the one hand, the protection of essential United Kingdom interests in matters of national taxation and national financial management and, on the other, the reasonable expectations of the Assembly
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to be able to deal with essential features of the devolved area of local government and local finance. The deletion of subparagraph (2) would, in the Government's view, represent an unwarranted intrusion into that devolved area which would he likely to cause a sense of frustration in the devolved Administration and could provide occasion for argument and contention between the Administration and the Government.
I should add that the whole system of rating could be reconsidered and changed by Westminster legislation and Westminster legislation only; that must be emphasised. It was, as I recall, that particular point which my noble and learned friend Lord McCluskey was attempting to emphasise in the debate quoted by the noble and learned Lord, Lord Wilson of Langside. For the reasons I have given, I ask the House to resist the Amendment.
Lord WILSON of LANGSIDE: My Lords, I appreciated, even before I heard from the noble Lord, the technical objections to the Amendment, but I was disturbed about the possible implications of these provisions, as were a number of others, and I was disturbed by the possible implications of what the noble and learned Lord said on the occasion to which I referred. However, I am grateful to the noble Lord, Lord Kirkhill, for the assurances he has given with his usual clarity. I accept them and I beg leave to withdraw the Amendment.
Amendment, by leave withdrawn.
Baroness STEDMAN Baroness STEDMAN moved Amendment No. 41:
Page 47, line 26, leave out paragraph 8 and insert—
("8. Paragraph 1 above does not prevent a provision from being within the legislative competence of the Assembly if it is merely incidental to or consequential on other provisions and those other provisions are within that competence.").
The noble Baroness said: My Lords, my noble and learned friend Lord McCluskey spoke to this with Amendment No. 40. It is consequential and I beg to move.
Clause 19 [Scrutiny of Assembly Bills]:
10.19 p.m.
Baroness STEDMAN Baroness STEDMAN moved Amendment No. 42:
Page 9, line 10, leave out ("it") and insert ("any of its provisions").
The noble Baroness said: My Lords, my noble and learned friend Lord McCluskey also spoke to this Amendment earlier. I formally beg to move.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 43:
Page 9, line 11, after ("Assembly") insert ("or is not compatible with any enforceable Community right, power, liability, obligation or restriction (as defined in section 2(1) of the European Communities Act 1972)").
The noble Viscount said: My Lords, this is a point where, I am afraid, the happy discussions have not borne the fruit that has occurred in other respects. The scheme of Clause 19 is twofold. It applies to the stage before any Scottish Assembly Bill had been presented to the Queen for her Assent, and it provides an opportunity for two forms of scrutiny. The first form of scrutiny is one on the legal side, and that is contained in paragraph (a) of subsection (1). The second form of scrutiny is on the political side, and that is contained in paragraph (b).
We have, happily, reached accord on the existing scope of what is to be done under Clause 19(1)(a), in that we have just been discussing a number of Amendments which deal with what the Judicial Committee of the Privy Council shall consider and how it shall consider it when it is presented with the problem of a possible conflict between the provisions of a Scottish Assembly Bill, as it finally emerges from the Assembly, and the provisions of the present Bill, when it is an Act, which, after all, sets up the Scottish Assembly and gives it all its powers and its competence. It there is any doubt about the way in which such a Scottish Assembly Bill has been prepared, and about whether it is within the powers devolved by the Bill which we are now discussing, then the people who are very properly to pronounce upon the matter are to be the Judicial Committee of the Privy Council,
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because of course it is a matter of pure law that is involved.
We are all at one on that, and we have worked out the most happy solution as to how it should be done. As I said a few moments ago, the matter will be argued by Law Officers on both sides. When I said that the noble and learned Lord nodded his head very slightly in agreement with me. Now he is nodding even more firmly, so what I say is true. The question will be argued by Law Officers on both sides so that the full truth of the matter can be discerned and decided upon by the Judicial Committee. That is because there is the possibility of conflict between the provisions of this Bill, which provide the area in which the Scottish Assembly is allowed to legislate —the devolved matters—and the possibility that the Bills emanating from the Assembly may stray over the edges of the areas with which they are allowed to deal; or, in other words, get outside their powers.
Since this country joined the European Economic Community in 1972 there is another, and totally different, possible area of conflict. It is my fault that I did not sufficiently clearly indicate during the Committee stage of the Bill the area of dispute with which I was concerned. I have now put down a series of Amendments to try to deal with that. Amendment No. 43 is the first in this series, but I should like also to speak to Amendments Nos. 45, 47 and 49, because they are all part of the same scheme of Amendments which deal with this particular point.
What happens in this respect is as follows. Under the series of Treaties by which we are tied to the European Community there are a number of ways in which the deliberations, the decisions and the emanations of the Community affect us in this country. The Government have picked out in paragraph (b) of Clause 19(1) obligations which come from the Community and which are, as I understand it, similar to other international obligations which are matters as regards which the Government have to decide both whether and how to implement.
Those are the matters over which I have no disagreement with the Government at all, and I do not wish in any way

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to attack the solution that they have found. If they are dealing with European obligations, where it is a matter for the Government to decide how they are to legislate—whether by way of primary legislation, subordinate legislation, executive action, or whatever—in order to fulfil the duty that is imposed upon them from the Community in Brussels, then of course I agree that they should do it by the means they have provided for in the Bill at the moment—namely, by way of political activity alone. If, therefore, they see a Scottish Assembly Bill which, in the form in which it has emerged from the Assembly, is in some way in conflict, or appears, if it is passed, to be going to be in conflict, with one of the duties that have been imposed upon this country's Government by something to do with the European Economic Community or one of the other treaties, then of course I agree that the Government must handle it on the political front. They must be allowed to veto it by virtue of the Secretary of State's powers, the United Kingdom powers. I hope that I have spelt out two areas of vast agreement between myself and the Government.
There is, unfortunately, an area in between which is not covered in this Bill, although I think I persuaded the noble and learned Lord, Lord McCluskey, to agree with me at the Committee stage that it must have been by implication covered and dealt with by way of the latter Amendment which I talked about; that is, that the Secretary of State shall be allowed to override the Scottish Assembly Bill on political rather than legal grounds because the Government think there is conflict with one of the obligations that has come from Europe. The area of dispute between myself and the Government is a fairly narrow but important one. There are certain things that are done by the organs of the European Communities—and my noble friends Lord O'Hagan and Lady Elles know these all too well—which have not got to be implemented in this country either by primary or by secondary legislation. They automatically become part of the law of this land and become automatically enforceable in the courts and something upon which the citizens of this country can rely. They are ultimately part of the law of this country whether in Scotland,
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England or any other part of the United Kingdom. They are pure matters of law. They create rights or obligations, depending upon the side of the picture one is looking at. It is just as much a matter of law as is the question of whether something that has been done by the Scottish Assembly in a Bill is within the powers given to that Assembly by this Scotland Bill which we are now discussing.
In these Amendments I am saying that these are matters of law. Where we have already found matters of law—that is to say, the possibility that the Assembly Act is ultra vires the Scotland Act itself—we are sending it to the judicial machinery to decide. Here we have directly applicable European law. That is a matter of law. I say that that, too, should go to the judicial machinery to decide, and the Government say that it should not go to the judicial machinery; although it is a matter of law this is something upon which the political veto will be imposed without taking any court's advice.
You may ask what is the difference between taking the court's advice in this country and taking the advice of a well-informed Secretary of State? There is a difference and it is an important one. When one is talking about European law it is not a matter which is susceptible of final decision in this country. No Secretary of State has the final say. The people who have the final say are the European Court of Justice at Luxembourg. If it is a matter of the possibility of conflict between a directly applicable piece of European law and something which has turned up in a Scottish Bill which seems not to be compatible with it, this is not only a justiciable issue, a matter of law, but it is one upon which the final court of appeal is not in this country but in Luxembourg.
If you send that kind of dispute, as my Amendments would, to the Judicial Committee of the Privy Council for them first of all to look at and decide, they are specifically enabled to do so by my Amendment No. 49 which makes their proceedings legal proceedings and therefore attracts them into the system whereby under the Treaty of Rome a final court of appeal is required to refer its decision on this kind of thing to the European Court. It brings the whole thing into

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the ambit of the European Court of Justice, so that the decision on compatibility or otherwise can be made by the only people, under the European Treaties, who are enabled to decide it. No Secretary of State can make that kind of decision. He is subject to being overruled. If he makes it wrongly, he can be overruled later on at the suit of the citizen. The only people who cannot be overruled are the European Court, and these Amendments would enable the matter to go directly, via the Judicial Committee, to the European Court.
I should like this to happen, because if these Amendments are not passed the matter is not dead. Again, it will be something that the citizen can take up in private litigation if he wishes; and he can take it through the ordinary system of the courts to the European Court in the end. He will be able to go through the same process, but at a cost. Your Lordships should not suppose that it is cheap to take the matter up the appeal ladder to the European Court. Even if you get legal aid all the way, or even if your costs are paid, it is still a substantial financial burden on the litigant. I would say to your Lordships that, if we are going to have the Judicial Committee looking at conflicts between the Scotland Act and a Scottish Assembly Bill on vires, they should also look at matters which have nothing to do with the Government—they concern directly applicable law which applies to every citizen in the country —and they are possible conflicts between a Scottish Assembly Act or Bill and directly applicable European law.
I do not think I persuaded the Government at the Committee stage that this was the right way to do it, but I feel very strongly that we have a quite different system here, a quite different arrangement, whereby this should not be left to the Secretary of State. He is not the right person to decide it; he is not equipped to decide it; he has not the ability to go to the European Court, who alone can decide it. We ought to have it done through the judicial system, and that is why I put down this Amendment, which I beg to move.
Lord McCLUSKEY: My Lords, I think, as the noble Viscount has made
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plain, this is a matter of some complication. I can assure the House that we have looked at it with the greatest possible care, and I will seek to answer what the noble Viscount has said with the same degree of care. As the noble Viscount has himself pointed out, these Amendments differ from those which he tabled at the Committee stage; and, as he himself made clear, they now propose only that questions of compatibility of Assembly Bills with enforceable Community obligations, and the like, should be referred to the Judicial Committee. It is therefore conceded, as the noble Viscount has just made absolutely clear, that questions of compatibility with Community obligations other than enforceable Community obligations are for determination by Ministers, and not by the Judicial Committee.
We are agreed, therefore, that the point of difficulty concerns enforceable or, as they are sometimes known, directly applicable Community obligations; namely, those which without further enactment are given legal effect in the United Kingdom in terms of Section 2(1) of the 1972 Act. Although, as has been suggested by the noble Viscount and by the noble and learned Lord, Lord Diplock, in Committee, it is true that the question of compatibility between an Assembly Bill and an enforceable Community obligation could be regarded as a justiciable issue, in the same sense as the issue of legislative competence under Clause 19 is made justiciable, nevertheless the Government remain firmly of the opinion that there are overriding practical and political objections to referring such questions of incompatibility to the Judicial Committee at the pre-Assent stage.
Although the distinction which the noble Viscount has just described between Community obligations of direct application and other Community obligations is clear in principle, the working out of the distinction in practice, and its application to particular provisions of the Treaty, is a matter of some real complexity depending on the evolving jurisprudence of the European Court of Justice. A requirement to submit questions of compatibility with enforceable Community obligations to the Judicial Committee compels the Government to

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commit themselves to a view on this difficult question of direct applicability at a very early stage, when the real question with which the Government, in the exercise of their responsibility for observance of Community obligations, are concerned at that stage is the question of compatibility of the Assembly Bill with the obligation in question, whether or not it is an obligation of direct application. Under the Bill as it stands, if the Secretary of State, having taken advice on the matter, takes the view that the Bill is incompatible with a Community obligation, then he need not commit himself or the Government on the question of direct application by submitting or withholding the Bill from the Judicial Committee.
A requirement to submit to the Judicial Committee could also create problems where the Judicial Committee disagreed with the Secretary of State's opinion that the obligation in question was directly applicable, and was therefore obliged, perhaps after going through the procedure of an Article 177 reference to the European Court—the Judicial Committee would be obliged to decline to pronounce on the question of compatability. The pre-Assent scrutiny procedure would, in that event, have been considerably prolonged to no purpose, and the Secretary of State would he left to decide under Clause 19(1)(b) whether he should withhold the Bill from Assent on the ground of incompatability with a Community obligation not directly applicable.
In this connection, it is an important objection to these Amendments that in any such reference the pre-Assent scrutiny procedure would he liable to be considerably extended in any case where the Judicial Committee had to refer a question as to the meaning or direct applicability of a Community obligation to the European Court. Notwithstanding what the noble Viscount said at the Committee stage in an intervention, such a reference under Article 177 would, because of the mandatory requirements as to notice and time for representations by other Member States, necessarily take several months to reach a decision. On the basis of recent experience the minimum period is five months and the average about seven months. That period of time, which is
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substantial, would be in addition to any other time already occupied by the reference to the Judicial Committee itself. There could be further problems where an Assembly Bill was thought to be incompatible with two or more Community obligations, including both directly applicable and others. The decision whether to submit the Bill for Assent ought to be the decision of the Secretary of State based on a consideration of the Bill as a whole.
Moreover, the decision whether to withhold a Bill from Assent also depends on the second factor mentioned in Clause 19(1)(b); namely, whether the Government think it more appropriate that a particular Community obligation should be implemented by Parliament instead of by the Assembly. This could involve consideration of a variety of factors such as doubts as to the compatibility of the implementing measure proposed by the Assembly, questions whether implementing legislation is necessary at all, and the desirability of simultaneous and uniform implementation throughout the United Kingdom, which is a matter the noble Viscount did not take into account. This mixture of juridical and political factors makes it impracticable to regard the question of compatibility as an isolated justiciable question which must be referred to the Judicial Committee. It is not in our view as the noble Viscount described it, simply a question of law.
It should also he borne in mind that the decision of the Judicial Committee on such a reference would carry much less weight than its decision on a purely domestic issue of legislative competence. The decision could not he relied on as producing finality, unless in the (unusual) case where the decision turned upon the opinion of the European Court on the reference of a particular question to them by the Judicial Committee. In most cases where the Judicial Committee had given clearance to an Assembly Bill it would still be open to any litigant after its enactment to challenge it and have a question of European law referred to the European Court: no provision about finality in the Scotland Bill could take away this right under the Community Treaties.
In all the circumstances, it is impracticable to try to separate out the juridical

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from the political elements in the question of compliance with Community obligations. Moreover, every reference to the Judicial Committee on compatibility with Community obligations would involve a potential reference to the European Court under Article 177. It would be a novel departure in Community practice—on which we could not embark without considering its full implications for our relationship with the Communities—to have the European Court act thus as a kind of advisory body for the purpose of the procedure leading up to the enactment of domestic legislation, and could lead to pressure for similar procedure for Westminster Bills.
That is a point that I made at Committee stage; that in fact there is no similar procedure for Westminster Bills, and I did not understand the noble Viscount to propose an Amendment of the European Communities Act 1972 to introduce such a procedure for Westminster Bills. It is our view that it is the task of the Government, who are primarily responsible for the observance of our Community obligations, to make their own assessment of the compatability of prospective domestic legislation with Community obligations, and to allow to be enacted only what they themselves believe to be so compatible. This is in keeping with the policy of the Bill to retain overriding responsibility for matters related to Community obligations notwithstanding the grant of certain powers in relation to such obligations to the devolved Administration.
That is the considered answer to the Amendments, but there are two drafting points to which I ought to draw attention. Mention has already been made of the absence of provision in these Amendments for dealing with the consequences of a finding of incompatibility by the Judicial Committee. That is not something which the noble Viscount has sought to deal with in this series of Amendments. The second point is this: The main Amendment refers to
"any enforceable Community right, power, liability, obligation or restriction (as defined in section 2(1) of the European Communities Act 1972)",
It is, however, unnecessary to go beyond a reference to incompatibility with obligations. The object is to ensure that Assembly Acts are not passed which are
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inconsistent with Community obligations —nothing more. Community Instruments may confer rights or powers, or impose restrictions, which are directly applicable to bodies or persons within the Member States; hence the form of words used in Section 2(l) of the 1972 Act. But in the context of pre-Assent scrutiny of Assembly Bills, the Government are concerned only to ensure that our obligations under the Treaties—whether direct or in relation to any such rights, powers, and the like—are duly observed in relation to devolved matters.
Hence the simple reference, to obligations only, in the other clauses dealing with the Communities—Clauses 37(2), 38(2) and 62(3). It is in any event unnecessary to refer in the Amendments to Section 2(1) of the 1972 Act as, by Section 1(2), the meanings given in that Act apply also in any future Act. I have endeavoured to give a careful statement of the position, and I hope that, in the light of it, the noble Viscount will not feel that he should press these Amendments.
10.44 p.m.
Viscount COLVILLE of CULROSS: My Lords, it is surprising the way nobody else seems to want to join in on this topic. I cannot think why! May I say to the noble and learned Lord, Lord McCluskey, that if it is a matter of drafting, and that is all he has by way of complaint about my Amendments, I do not consider that I have done too badly. I shall leave it to the Government, if the occasion should arise, to correct them on a subsequent occasion.
What I think perhaps I ought to say by way of answer to the noble and learned Lord is this: I think it would be worth while just looking for a moment at what Clause 19—particularly with the Amendments with which I hope we all agree— will provide. It will provide under subsection (1)(a) that, if the Secretary of State is of the opinion that a Scottish Assembly Bill is not within the legislative competence, then that is something he has to send to the Judicial Committee.
The Government have been good enough to go a bit further than that. We have

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on the Marshalled List Amendment No. 46, which we shall reach in a moment, which provides that the Secretary of State may also refer to the Judicial Committee a matter about the vires of a Scottish Assembly Bill, if he is in sufficient doubt as to whether it is within the terms of the Scottish Bill. I know that the whole realm of European law and its impact upon the citizens of this country and upon the actions that are brought in the courts of this country is ever evolving, and the decisions of the European Court of Justice are creeping further into the lives of the people who live here. That is part of the fact of belonging to the European Community. However, all we are talking about here is a situation where either the Secretary of State is very sure that there is an incompatibility with a directly applicable piece of European law, or he has a real doubt. Under Amendment No. 46, he has not got to speculate about it; he has not got to send up a kite or some trial balloon to see whether by any chance there is an area into which the European courts might find their way, and where they will bestow rights upon the citizens of this country which nobody would have suspected they would ever have.
It is nothing like that. All he has to do, under these Amendments, is to act where he is fairly sure, or to act where he has a genuine doubt. The noble and learned Lord says that I ought not to have mentioned rights and all the other points that I mentioned in my Amendment—which I took straight out of Section 2(1) of the European Communities Act—and that all we need to talk about are obligations. That is just what am complaining about. The noble and learned Lord looks at this only from the point of view of the Government and the Government machine. It is only the Government machine which is involved with obligations. Of course, they are involved with obligations: they are very important to them. They might themselves get the United Kingdom hauled up in front of the European Court under a different Article in the Treaties.
I am not talking about those matters: I am talking about matters which the Government do not need to do anything about at all. They do not have to take
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any action. These are matters directly applicable to the citizens of this country, without the Government having to intervene in any way. These are rights; these are duties; these are liabilities and powers as well as obligations; and these are the matters I would suspect that we need to have dealt with because, after all, the noble and learned Lord agrees that they are justiciable.
This point also answers (does it not?) the question of United Kingdom uniformity. Of course I agree that, if you are looking at this from the Government's point of view, you must make sure that you veto an attempt by the Scottish Assembly to pass some measure which purports to implement an obligation which comes from the European Community, which is only enforceable by means of legislation in the domestic country, or subordinate legislation. You must not let them do that if they are going to do it in a way that is different from the way we do it in Westminster. But I am not talking about those things. Those are the matters which go through Government and which I concede should remain with the Government. I am talking about directly applicable law which has nothing to do with uniformity, because it is uniform already. It applies to everybody.
What about the time, which the noble and learned Lord talked about? All right, it may take some time. I know that the Judicial Committee is going to be very rapid. But must we risk being wrong, because it will take a little time to discover whether we are right? Must we say, "We cannot set up any machinery whereby a matter can be decided before the Scottish Assembly Bill is ever enacted, because it will take too long to do this? We have got to leave this for the citizen to pay for afterwards, out of his own pocket, because we cannot afford the time at Westminster or Edinburgh to let this be tested"? I should have thought that this was a very poor argument.
After all, in the end there are two things that might happen. The European Court might say, "After all, this was not incompatible with a directly applicable piece of European law", in which case the matter would go ahead. Or they might say, "Yes, it is incompatible", in which case I should have thought that the

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Judicial Committee would have been bound so to find, and then we should have a situation where a Bill could not be presented in the future for Royal Assent. What are we being presented with instead? We are being told that where there is a question of doubt, or even indeed a question of certainty—but particularly where there is a question of doubt—we shall not be able to give the Scottish Assembly an opportunity to have the allowability of its Bill tested in the European Court, just in case it might take too long, just in case it might be right and it had done something that was correct.
For all I know, we are simply providing the Secretary of State with a power of veto even where there is a doubt, just so that the Scottish Assembly may not be proved to be right in the courts. Is that
Resolved in the affirmative, and Amendment agreed to accordingly.
11.1 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 44:
the way to do it? This is justiciable. It is the same as the question of vires under the Bill. This affects the citizen directly the same as the matters that are provided for for the courts to decide under the Bill. I suggest that this should be dealt with in the same way as the internal vires, under Clause 19(1)(a) of the Scottish Assembly Bill. For all the blandishments of the noble and learned Lord, and with all the gratitude that I express to him for having looked so earnestly and carefully at this, I am afraid that I cannot be satisfied with the answer that he has given me.
10.53 p.m.
On Question, Whether the said Amendment (No. 43) shall be agreed to?
Their Lordships divided: Contents, 49: Not-Contents, 36.

CONTENTS

Amherst of Hackney, L.

Forbes, L.

Mowbray and Stourton, L. [Teller.]

Balerno, L.

Fortescue, E.

Belstead, L.

Glasgow, E.

Newall, L.

Campbell of Croy, L.

Glendevon, L.

O'Hagan, L.

Carr of Hadley, L.

Glenkinglas, L.

Perth, E.

Carrington, L.

Gray, L.

Redesdale, L.

Cathcart, E.

Harmar-Nicholls, L.

Sandford, L.

Colville of Culross, V.

Henley, L.

Sandys, L.

Cork and Orrery, E.

Hood, V.

Selkirk, E.

Craigmyle, L.

Hylton, L.

Skelmersdale, L.

de Clifford, L.

Kilmany, L.

Strathcona and Mount Royal, L.

Denham, L. [Teller.]

Kinross, L.

Tweeddale, M.

Elles, B.

Linlithgow, M.

Vernon, L.

Elliot of Harwood, B.

Lyell, L.

Vickers, B.

Elton, L.

Margadale, L.

Ward of North Tyneside, B.

Ferrers, E.

Masham of Ilton, B.

Wilson of Langside, L.

Ferrier, L.

Mottistone, L.

NOT-CONTENTS

Balogh, L.

Houghton of Sowerby, L.

Peart, L. (L. Privy Seal.)

Birk, B.

Janner, L.

Shepherd, L.

Boston of Faversham, L.

Kaldor, L.

Stedman, B.

Brown, L.

Kirkhiil, L.

Stone, L.

Davies of Leek, L.

Llewelyn-Davies of Hastoe, B.

Strabolgi, L. [Teller.]

Davies of Penrhys, L.

Lovell-Davis, L.

Taylor of Blackburn, L.

Donaldson of Kingsbridge, L.

McCluskey, L.

Thomson of Monifieth, L.

Gaitskell, B.

McGregor of Durris, L.

Thurso, V.

Gregson, L.

Monson, L.

Wallace of Coslany, L.

Hatch of Lusby, L.

Northfield, L.

Wells Pestell, L. [Teller.]

Hale, L.

Oram, L.

White, B.

Harris of Greenwich, L.

Parry, L.

Winterbottom, L.

Page 9, line 12, leave out ("it") and insert ("that provision").
The noble and learned Lord said: My Lords, Amendment No. 44 is consequential. I beg to move.
On Question, Amendment agreed to.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 45:
Page 9, line 12, after ("competence") insert ("or is so compatible, as the case may be,").
The noble Viscount said: My Lords, this is a consequential Amendment. I beg to move.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 46:
Page 9, line 13, leave out from ("decision") to first ("is") in line 15 and insert ("and he may also do so if he is of opinion that there is sufficient doubt about it to justify the reference; but no such reference shall be made in a case falling within subsection (2) below or section 36(3) of this Act.
(2) If, after considering a Bill in pursuance of subsection (1) above, the Secretary of State").
The noble and learned Lord said: My Lords, this may take a little time, but I am speaking quite literally; I do mean a little time. This Amendment meets a point raised by the noble and learned Viscount, Lord Dilhorne, in Committee, namely, that provision should be made to enable the Secretary of State to refer questions whether provisions in Assembly Bills are intra vires to the Judicial Committee if he is in doubt and his doubt falls short of a firm opinion that the provisions in the Bill are ultra vires. This was referred to by the noble Viscount, Lord Colville of Culross, when speaking to the last Amendment.
Thus Clause 19, as amended in this way, would provide that the Secretary of State is under a duty to refer to the Judicial Committee any provisions of an Assembly Bill, if he is of opinion that they are outside legislative competence, and may refer provisions of a Bill if he is of the opinion that there is sufficient doubt to justify a reference. The Amendment to Clause 19 also provides that, if the Secretary of State is proposing to override an Assembly Bill on policy grounds under Clause 36, he shall not make reference to the Judicial Committee on vires grounds. This is a drafting change, not a new provision; it was previously contained in Clause 36(4) which it is now proposed to delete. In due course we shall come to Amendment No. 100 which does exactly that, but for the moment I content myself with moving Amendment No. 46. I beg to move.
Viscount COLVILLE of CULROSS: My Lords, I shall also take only a very little time just to say that, quite regardless of what one may think about the European traditions in the context in which I referred to this, it seems to me that this is an admirable improvement to the Bill. Although it may have come from the noble and learned Lords on the Cross-Benches, I most warmly support it, not least because it gives the opportunity for almost anybody in a position to do so to suggest a doubt to the Secretary of State. It could come from Parliament or from anybody else in a responsible position. This also is a matter to which I had some Amendments tabled and which is met in essence by this particular provision. So, although the primary person who is satisfied will, I am sure, be one of the noble and learned Lords on the Cross-Benches, it has certainly given me very great satisfaction and I am grateful to the Government for it.
On Question, Amendment agreed to.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 47:
Page 9. line 16, after ("obligations") insert ("other than an enforceable Community obligation").
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 48:
Page 9, line 23, leave out subsection (2).
The noble and learned Lord said: My Lords, I beg to move Amendment No. 48. This is consequential and was spoken to in connection with Amendment No. 38.
On Question, Amendment agreed to.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 49:
Page 9, line 26, at beginning insert ("A reference under this section shall he deemed to be legal proceedings and").
The noble Viscount said: My Lords, I beg to move Amendment No. 49. This is consequential, but the point is to make sure that proceedings in front of the Judicial Committee shall be deemed to be legal proceedings, so that they can be referred to the European Court for the purposes that I have mentioned.
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendments Nos. 50 to 52:
Page 9, line 28, after ("that") insert ("any provision of").
Page 9, line 30, leave out ("it") and insert ("the Bill").
Page 9, line 30, at end insert ("and if the Judicial Committee decides that a provision is within the legislative competence of the Assembly the decision shall he binding in all legal proceedings").
The noble and learned Lord said: My Lords, with the leave of the House, I beg to move Amendments Nos. 50, 51 and 52 en bloc. They are all consequential on Amendment No. 38.
On Question, Amendments agreed to.

UNION THEOLOGICAL COLLEGE OF THE PRESBYTERIAN CHURCH IN IRELAND BILL [H.L.]
Returned from the Commons agreed to with Amendments; the said Amendments considered and agreed to.