HL Deb 07 June 1978 vol 392 cc1231-310

3.12 p.m.

Report received.

Clause 1 [The Scottish Assembly]:

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 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 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 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 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. Otherwise I do not see that there need be any great difficulty of interpretation involved.

On Question, Amendment agreed to.

Lord DRUMALBYN moved Amendment No. 3: Page 2, line 16, leave out ("ordinary").

On Question, Amendment agreed to.

3.23 p.m.

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"— 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 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.] 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 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 UnionEngland, 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". 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 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 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 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 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- 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 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 untrue▀×I 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, 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. 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 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 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 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 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 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, 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". 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 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 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 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.

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 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 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 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. 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 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: 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 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 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. 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 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 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 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 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 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 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 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, 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 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 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 moved Amendment No. 7: Page 43, line 30, leave out ("ordinary").

On Question, Amendment agreed to.

Lord DRUMALBYN moved Amendment No. 8: Page 43, line 34, leave out ("ordinary").

On Question, Amendment agreed to.

Lord DRUMALBYN moved Amendment No. 9: Page 43, line 38, leave out ("ordinary").

On Question, Amendment agreed to.

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 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 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 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 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 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 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 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 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 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 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. 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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.